[00:00:00] Speaker 02:
The first case that we have this morning is United States versus De Leon 223036, and we'll start with Ms.

[00:00:07] Speaker 02:
Gorman.

[00:00:23] Speaker 03:
Good morning.

[00:00:24] Speaker 03:
May it please the court?

[00:00:26] Speaker 03:
My name is Sarah Gorman, and I represent the appellant, Angel De Leon.

[00:00:29] Speaker 03:
I intend to reserve two minutes for rebuttal, but we'll see how that goes.

[00:00:34] Speaker 03:
Angel De Leon's conviction for violent crime in aid of racketeering, the murder of Frank Castillo, should be vacated and this court should remand the case for a new trial.

[00:00:43] Speaker 03:
The strength of the government's case relied on contaminated DNA evidence, a blatant disregard for federal rule of evidence 404B and the court's previous ruling, and compromised witnesses

[00:00:54] Speaker 03:
The government's goal with this indictment was to secure as many convictions as they could by any means necessary, including presenting inadmissible evidence to the jury, which the District Court facilitated by allowing inadmissible propensity evidence in violation of Federal Rule of Evidence 404B and 403, and when the District Court violated its own previous ruling and admitted prejudicial testimony about the Sindicato de Nuevo Mexico, or the S&M, completely unrelated to Mr. De Leon and the crime for which he was charged.

[00:01:24] Speaker 03:
Now, I want to begin my argument by talking about the last point in my brief, but the most recent development chronologically, which was Mr. De Leon's motion under Rule 37 for indicative ruling based on newly discovered evidence and the concurrent motion for new trial.

[00:01:39] Speaker 03:
Now, the DNA evidence in this case was the only scientific or neutral evidence against Mr. De Leon.

[00:01:46] Speaker 03:
and the district court's denial of the Rule 37 motion in 2023 for indicative ruling along with the related motion for new trial with air and the case should be remanded for a new trial.

[00:01:57] Speaker 02:
Can I stop and ask you a question that I don't know particularly bears on the outcome, but it certainly will bear on the way we analyze it.

[00:02:07] Speaker 02:
Are we reviewing the denial of a motion for indicative ruling under 37 or the denial of a motion for a new trial?

[00:02:14] Speaker 02:
I think the government has interpreted it as a denial of the motion for a new trial.

[00:02:20] Speaker 02:
I think the way you've couched it is basically the denial of a motion for indicative ruling, or at least the conclusion that there's not a substantial issue.

[00:02:32] Speaker 02:
But I wonder if we decide the issue as you have framed it, whether it really

[00:02:41] Speaker 02:
is materially significant at all.

[00:02:44] Speaker 02:
In other words, if we say, okay, you should have granted the motion for an indicative ruling,

[00:02:53] Speaker 02:
all that means is we shouldn't be here right now.

[00:02:56] Speaker 02:
We should have abated the appeal and waited for the district judge to rule on that.

[00:03:01] Speaker 02:
So I'm a little confused on the legal significance of the denial of a motion for indicative ruling.

[00:03:08] Speaker 03:
Well, Your Honor, I actually am arguing both arguments, actually.

[00:03:12] Speaker 03:
First of all, the motion for indicative ruling, and again, the Rule 37 is actually a

[00:03:17] Speaker 03:
not a whole lot out there on the rule 37, but it's mostly used in cases like this for newly discovered evidence.

[00:03:23] Speaker 03:
So the way that I couch my argument both to the district court and to this court is that first of all there is a substantial issue under rule 37 based on the newly discovered evidence.

[00:03:33] Speaker 03:
Now the court can do several things under that rule.

[00:03:37] Speaker 03:
What we asked the court to do was to flat out rule yes, there's a substantial issue and

[00:03:42] Speaker 03:
That issue was newly discovered evidence that merits a new trial under the United States versus Sinclair factors.

[00:03:48] Speaker 03:
However, the court did not have to grant the motion for new trial at that point.

[00:03:53] Speaker 03:
The court could have also, and we asked the court to do this alternatively, which was to grant the motion for Rule 37, finding that a substantial issue has been raised in this newly discovered evidence, asking this court, the 10th Circuit, to remand jurisdiction to the district court for further proceedings and further briefing.

[00:04:10] Speaker 03:
The district court flat out denied both of those.

[00:04:12] Speaker 03:
So my argument is both, that there is enough evidence here and in front of the district court to have granted the motion for new trial, but even if this court or the district court weren't convinced, then granting the rule 37 for further briefing and further argument was absolutely appropriate given the substantial nature of this evidence.

[00:04:31] Speaker 03:
And the evidence we're talking about is the DNA.

[00:04:34] Speaker 00:
No, that's why, what evidence are you talking about?

[00:04:36] Speaker 00:
Are you talking about this view of this association,

[00:04:40] Speaker 00:
The opined on problems at the lab in New Mexico?

[00:04:44] Speaker 03:
Well, it's not just the view of the association.

[00:04:45] Speaker 03:
So what the newly discovered evidence is, is what came out in 2023.

[00:04:48] Speaker 03:
Now, just for a little bit of background, during the trial in 2021, there was two DNA testing, testimony regarding two DNA testing.

[00:04:57] Speaker 03:
In 2001, which was the time of the murder of Frank Castillo, there was DNA testing done where Mr. de Leon's DNA came back on the ligature that was used to strangle Frank Castillo.

[00:05:08] Speaker 03:
In 2014, there was retesting done where there was no DNA of Mr. de Leon found on the ligature.

[00:05:15] Speaker 03:
At the time of trial, the government argued that was degradation.

[00:05:19] Speaker 03:
We argued, no, there was actually a high likelihood of cross-contamination because

[00:05:23] Speaker 03:
Mr. De Leon's shirt, which had blood stains on it, was examined right next to the ligature.

[00:05:28] Speaker 03:
And DNA is aerosol.

[00:05:30] Speaker 03:
It travels through the force of air.

[00:05:33] Speaker 03:
So the pipetting process, where these two samples were placed right next to each other, could have very likely led to cross-contamination and would have been the reason.

[00:05:39] Speaker 00:
We understand that.

[00:05:40] Speaker 00:
But what about the new evidence?

[00:05:42] Speaker 03:
So the new evidence, in 2023, there was a complaint by... Let me ask you.

[00:05:48] Speaker 00:
This evidence was not available to you at the time of trial.

[00:05:52] Speaker 00:
That is correct.

[00:05:53] Speaker 03:
So the new evidence is the accrediting agency's red alert investigation, which resulted in a deficiency summary report, as well as the deficiency reports, which contained within them admissions from the lab.

[00:06:06] Speaker 03:
And that is the most important piece here, admissions from the New Mexico Department of Public Safety lab.

[00:06:11] Speaker 03:
that not only were there other contamination events in the form of corrective action reports, but also the lab's own admission by the director that the space was actually cramped and there was not enough space for testing.

[00:06:25] Speaker 00:
Okay, did the testimony of the New Mexico folks in the lab and the evidence that you put on, did it talk about the problems

[00:06:41] Speaker 00:
as of 2001 or as of the time that they were testifying?

[00:06:47] Speaker 03:
At trial in 2021, we, is that the court's question?

[00:06:52] Speaker 00:
Yeah, well, if there was contamination, what we have to worry about is contamination in 2001 and the condition of the lab at the time.

[00:07:02] Speaker 00:
Correct.

[00:07:02] Speaker 00:
Did the testimony you had at trial reflect back

[00:07:08] Speaker 00:
over two decades earlier.

[00:07:10] Speaker 03:
Correct.

[00:07:10] Speaker 03:
The lab itself had not changed.

[00:07:12] Speaker 03:
The space itself had not changed since 2001.

[00:07:14] Speaker 03:
And so during trial, we cross-examined the lab technicians regarding the fact that they examined the two pieces of evidence so close together and that that was a violation of their guidelines.

[00:07:26] Speaker 03:
Now, the lab technicians denied that and said that they followed all proper guidance.

[00:07:31] Speaker 03:
But in 2023, what we have and what the lab technician or the lab director

[00:07:36] Speaker 03:
admitted, and this is the same lab, the same space, and we did confirm that with the lab before filing this motion, and that was in the motion for new trial and the motion for indicative ruling.

[00:07:45] Speaker 03:
The space was the same, and the lab director made admissions in response to the accrediting agency's sustained allegations that there was issues of cross-contamination in this lab.

[00:07:55] Speaker 00:
Precisely what did the lab director say that was an admission?

[00:08:02] Speaker 03:
She wrote a letter in response to the accrediting agency because the accrediting agency required them, the lab to respond to the sustained allegations and to provide how they were going to remedy the situation.

[00:08:15] Speaker 03:
And her letter indicated that the lab space had been cramped and it had been the same lab for decades and that the state of New Mexico was going to be building a new lab to deal with this issue because the space was cramped and it led to cross-contamination.

[00:08:29] Speaker 00:
Was there any testimony regarding whether the procedures

[00:08:32] Speaker 00:
at the time of this letter were exactly the same as the procedures in the lab in 2001.

[00:08:41] Speaker 03:
Not at trial, because this letter came about after the... Okay, at trial.

[00:08:47] Speaker 00:
It was their testimony.

[00:08:49] Speaker 00:
The procedures at the time of trial.

[00:08:54] Speaker 00:
were the same as they were in 2001.

[00:08:58] Speaker 03:
There was not specific testimony in that regard.

[00:09:01] Speaker 03:
There was testimony regarding the lab not having followed the specific guidelines in examining pieces of evidence with time and space differences between those two.

[00:09:11] Speaker 00:
All right.

[00:09:12] Speaker 00:
So the evidence is pretty much the same.

[00:09:17] Speaker 00:
It's just that it's updated between the time of trial and this motion for an indicative hearing.

[00:09:24] Speaker 03:
That's actually not the case, Your Honor.

[00:09:25] Speaker 03:
In this case, what's very important about this new investigation and the complaint by the accrediting agency and the admissions by the lab is that we actually have the lab, the authority, the actual testing lab making admissions that there is the likelihood of cross-contamination.

[00:09:42] Speaker 00:
You had the lab people on the stand during the trial.

[00:09:45] Speaker 00:
So I'm struggling with how this new evidence is not definitionally

[00:09:53] Speaker 03:
Well, because at the time of trial, these two, both of these technicians, both Kristen Radecki and Eve Tocomaro who testified, they denied that there were issues of cross-contamination.

[00:10:05] Speaker 03:
And here we have substantive evidence from the lab admitting that there are.

[00:10:09] Speaker 03:
And why this is important is... No, no, no, no, no.

[00:10:11] Speaker 00:
They denied that there was contamination in this case.

[00:10:15] Speaker 00:
The new evidence doesn't say there was contamination in this case.

[00:10:19] Speaker 00:
Isn't that correct?

[00:10:20] Speaker 03:
That's correct.

[00:10:20] Speaker 03:
It does not say that.

[00:10:21] Speaker 03:
But it provides a different context to the jury than what was available.

[00:10:26] Speaker 00:
And isn't that definitionally cumulative?

[00:10:29] Speaker 03:
I would argue that it's not.

[00:10:30] Speaker 03:
I would argue that it is actually substantive because we actually have the lab itself who has made these admissions, who has provided documents to its own accrediting agency.

[00:10:39] Speaker 03:
And why that's important here is because the government argues in their brief that there was so much other evidence and the judge itself, the district court said, well, this was just icing on the cake and that the jury wasn't that interested in the DNA evidence.

[00:10:52] Speaker 03:
But in the trial in 2021, there were only two pieces of direct evidence that allegedly placed Mr. De Leon in that cell where the murder of Frank Castillo happened.

[00:11:02] Speaker 03:
One was a cooperating snitch witness who was significantly compromised because this man admitted, Michael Jaramillo, admitted to himself having murdered Frank Castillo and never having been prosecuted for this in exchange for his testimony.

[00:11:16] Speaker 02:
It's pretty good evidence.

[00:11:18] Speaker 02:
The guy that ordered it

[00:11:20] Speaker 02:
Mr. De Leon to do the hit, you know, you can say, well, he's compromised, but yeah, he's compromised because he admitted that he was a co-conspirator in this very murder.

[00:11:33] Speaker 03:
Well, I mean, this particular witness was actually not the one who there were two witnesses who testified directly about the murder of Frank Castillo.

[00:11:39] Speaker 03:
One was Leonard Lujan who testified that he basically told the players who was going to do what and that they were to commit this murder.

[00:11:47] Speaker 03:
And then there was Michael Jaramillo, who was the witness who testified that he actually strangled Frank Castillo and that Mr. De Leon held down his legs.

[00:11:54] Speaker 03:
Now, the problem with Michael Jaramillo is this man, although an admitted murderer, testified in two different trials and in exchange for that, was never indicted, never received any type of punishment for his own murder, which is a significant motive and bias to lie.

[00:12:10] Speaker 03:
The only neutral evidence was the DNA evidence, and that evidence bolstered

[00:12:15] Speaker 03:
the testimony of these cooperating witnesses because they may have had motive to lie, but the DNA is supposed to be type of evidence that does not lie.

[00:12:24] Speaker 00:
And I think... Ms.

[00:12:25] Speaker 00:
Gorman, your argument is wholly in the context to a challenge on the sufficiency of the evidence, correct?

[00:12:37] Speaker 03:
That's the context.

[00:12:39] Speaker 03:
The context of the argument here is under the Sinclair Factors for a Motion for New Trial and whether there is a substantial issue.

[00:12:44] Speaker 00:
I understand that.

[00:12:45] Speaker 00:
But your issue in this appeal is the sufficiency of the evidence, correct?

[00:12:51] Speaker 03:
Well, in this appeal, I have several arguments, but regarding the DNA.

[00:12:56] Speaker 00:
Just ask.

[00:12:57] Speaker 00:
You have challenged the sufficiency of the evidence, correct or incorrect?

[00:13:00] Speaker 00:
That is correct.

[00:13:01] Speaker 00:
All right.

[00:13:01] Speaker 00:
And when you do that challenge, the evidence is viewed and construed in favor of upholding the verdict, correct?

[00:13:11] Speaker 03:
It is viewed in the light most favorable to the district court.

[00:13:13] Speaker 03:
That is correct.

[00:13:14] Speaker 00:
And so that is the context in which you view the new evidence that you want to bring in.

[00:13:22] Speaker 00:
And if you construe the evidence in the light most favorable to supporting the verdict, you have all these witnesses testifying.

[00:13:34] Speaker 00:
And you construe it in favor of affirming the verdict.

[00:13:40] Speaker 00:
And cumulative new evidence regarding the DNA

[00:13:45] Speaker 00:
doesn't change that formula.

[00:13:47] Speaker 00:
And don't you lose then?

[00:13:50] Speaker 03:
I don't believe so, Your Honor, especially when we're talking about that evidence that Your Honor is characterizing of the other witnesses.

[00:13:56] Speaker 03:
There were significant errors by the court in admitting some of that evidence, and that was the basis of the other arguments in my brief regarding the 404B evidence, which was improper propensity evidence, which was admitted both

[00:14:08] Speaker 03:
because it was late, deficient, and it was extrinsic evidence.

[00:14:13] Speaker 03:
Now, there was a list of eight acts provided by the government very late, once the jury had already been impaneled and once opening statements were about to begin.

[00:14:21] Speaker 03:
Of those eight, two we admitted were intrinsic to the court excluded, and there were three that the government did enter.

[00:14:29] Speaker 03:
It's clear that the notice was late under Rule 404b which explicitly states notice must be given in advance of trial and there must be specific non-propensity reasons given in that notice which did not happen.

[00:14:41] Speaker 03:
Now the government argues they were

[00:14:43] Speaker 03:
intrinsic, that wasn't the case.

[00:14:45] Speaker 03:
To be intrinsic, the acts must be intimately connected or blended with the factual circumstances of the charged offense.

[00:14:52] Speaker 03:
And here we had three different, an alleged assault in 1998, yard security, which was essentially enacting violent acts to protect the gang, and the validation of Mr. De Leon, which all of which were unrelated to the murder of Frank Castillo.

[00:15:07] Speaker 02:
What did you argue to Judge Browning that the yard security

[00:15:12] Speaker 02:
was extrinsic.

[00:15:15] Speaker 02:
The passages that you cited, I think, were right before Mr. Alonzo testified.

[00:15:22] Speaker 02:
And you said, I don't know if it was you or your colleague, said that, well, I think we've gotten to the point that it's cumulative.

[00:15:32] Speaker 02:
And so that's certainly an argument.

[00:15:34] Speaker 02:
It's not the argument that you're representing here.

[00:15:37] Speaker 02:
And you said that, I think, that in his 302, he gets it, the 302 reflects that Alonso was talking about De Leon smashing people.

[00:15:51] Speaker 02:
De Leon doesn't, I mean, Alonso doesn't testify about that, and you're not arguing that.

[00:15:56] Speaker 02:
It's the yard security.

[00:15:59] Speaker 02:
And the only passage that I saw, I think it's on 1688,

[00:16:03] Speaker 02:
that you referred to was I think he's going to get into stuff that is extrinsic under 404, but you don't say what that stuff was.

[00:16:23] Speaker 02:
And it can't be stuff that was from the letter

[00:16:28] Speaker 02:
that the government wrote at Judge Browning's insistence, because yard security is not one of those entries in the letter.

[00:16:35] Speaker 02:
So I don't know how Judge Browning could have known that you were going... He certainly didn't object during Alonso's testimony that, okay, he testifies about the yard security, not a word.

[00:16:49] Speaker 02:
Where did you preserve that argument on the yard security that it was not intrinsic?

[00:16:53] Speaker 03:
I do realize my time is up, so I'm going to go ahead

[00:16:56] Speaker 03:
So, regarding that, well first of all, there was the initial objection made at the time when the government indicated they hadn't even provided a list as to any of these matters coming in.

[00:17:06] Speaker 02:
And then he said, okay, let's see how it goes.

[00:17:09] Speaker 03:
And he said, we'll see how it goes, but he did make initial objections or initial rulings.

[00:17:14] Speaker 03:
And I just want to be clear, the government makes that argument as well that it wasn't properly preserved.

[00:17:18] Speaker 03:
But under the case that they argue, United States versus Fonseca, feudal repeated objections need not be made.

[00:17:23] Speaker 03:
And we did object at that point.

[00:17:25] Speaker 03:
And there were objections made to the context of this testimony.

[00:17:28] Speaker 03:
Now, Judge Browning clearly was on alert already at that time and knew what we were talking about.

[00:17:33] Speaker 03:
And I think that also goes into the other argument I made, which was regarding other evidence of

[00:17:39] Speaker 03:
S&M violence, and I'm not sure how much further the court will allow me to continue, but regarding S&M violence and how the court exceeded its own ruling in that case, which prejudiced Mr. De Leon as well.

[00:17:53] Speaker 02:
Okay.

[00:17:53] Speaker 02:
If that wasn't your fault, that was my fault, because I asked you a long question right when your clock was expired.

[00:17:59] Speaker 02:
Do you have any questions?

[00:18:03] Speaker 02:
Thank you.

[00:18:03] Speaker 03:
Thank you, Your Honor.

[00:18:33] Speaker 01:
May it please the court, counsel.

[00:18:36] Speaker 01:
My name is Richard Williams.

[00:18:37] Speaker 01:
I'm an Assistant United States Attorney in Las Cruces, New Mexico, and I represent the United States.

[00:18:42] Speaker 01:
This court should affirm the district court judgment in all respects.

[00:18:48] Speaker 01:
Vicar statute includes as elements not only that a defendant commit the violent crime, but that the defendant do so with a particular purpose.

[00:18:58] Speaker 01:
That purpose being to maintain or enhance

[00:19:02] Speaker 01:
his position in the racketeering organization.

[00:19:06] Speaker 01:
Turning to the last topic that was discussed with counsel, the intrinsic evidence.

[00:19:12] Speaker 01:
The district court reasonably assessed the proffered evidence and determined that it was intrinsic.

[00:19:24] Speaker 01:
That being that it provided necessary background or contextual information relevant to Mr. de Leon's commission of the Vicar crime.

[00:19:35] Speaker 01:
Mr. de Leon did not concede his membership in the S&M, nor that he had the required purpose for committing the crime.

[00:19:46] Speaker 01:
The yard security information in particular that related to when he was a prospect in 1997,

[00:19:53] Speaker 01:
and carried knives on behalf of the S&M in the yard, we would submit that that was not preserved, that there was not an objection made, bless you.

[00:20:04] Speaker 01:
At the time, it was proffered, but regardless, it was appropriate intrinsic evidence.

[00:20:10] Speaker 02:
Mr. Williams, you know, I, okay, I may have misremembered the record because I know there was discussion about Alonzo's testimony about him carrying knives, but I didn't think that he actually

[00:20:23] Speaker 02:
I thought he just testified that he did yard security.

[00:20:27] Speaker 02:
Did he actually testify that he, as part of yard security, that he carried knives?

[00:20:32] Speaker 01:
He described that that's what yard security was, I believe was the testimony, is carrying knives in the yard on behalf of the SNM.

[00:20:41] Speaker 01:
which would have been relevant to what Mr. de Leon would have done at the time as a prospect, as someone who wanted to join the SNM, showing that he was willing to act to protect SNM members in the prison yard.

[00:20:55] Speaker 01:
The only piece of evidence relating to Mr. de Leon's bad acts that was preserved was the 1998 assault.

[00:21:05] Speaker 01:
The district court made an appropriate assessment of that, admitted it as intrinsic

[00:21:09] Speaker 01:
because it was relevant to show not only that Mr. de Leon was an S&M member, which as the court noted was fuzzy at that time, but that he was willing to follow orders of the S&M, which is an integral rule of the gang and distinctly relevant to the instant offense, which was an ordered murder, and de Leon followed those orders in committing that crime.

[00:21:37] Speaker 01:
Turning to the second argument that the council makes relating to the enterprise evidence, we, as noted in our brief, believe that that argument was not preserved for a variety of reasons.

[00:21:51] Speaker 01:
The primary legal doctrine cited was law of the case, which wasn't made to the district court, and so would only be reviewed on plain error.

[00:21:59] Speaker 01:
If our plain error was urged, it was not, so it's waived.

[00:22:02] Speaker 01:
As to the other pieces of enterprise evidence,

[00:22:06] Speaker 01:
we'd argue it was largely not preserved for failure to... The Defense Council was specifically arguing before Alonzo testified.

[00:22:21] Speaker 01:
Before Mr. Alonzo's testimony?

[00:22:22] Speaker 02:
Right.

[00:22:23] Speaker 02:
That we've already reached the cumulative point on the enterprise evidence and specifically referenced enterprise evidence, I think.

[00:22:32] Speaker 02:
Am I wrong about that?

[00:22:34] Speaker 01:
That argument was made, but as to the specific

[00:22:37] Speaker 01:
evidence at the time it was admitted there was no objection made and the district court appropriately described the evidence to be admitted robustly to show the enterprise as opposed to evidence that was being admitted merely to impeach the government witnesses.

[00:22:59] Speaker 01:
As De Leon argued

[00:23:00] Speaker 01:
extensively at trial, these were witnesses who had extensive criminal histories ranging from murders to assaults to other things.

[00:23:10] Speaker 01:
And so much of the evidence that came in relating to individual witnesses related to their individual histories and was relevant for impeachment purposes or for the government to be able to front that for impeachment.

[00:23:24] Speaker 02:
Defense counsel in their opening statement acknowledged

[00:23:27] Speaker 02:
that they are not disputing the existence of a criminal enterprise?

[00:23:31] Speaker 01:
They did acknowledge they weren't disputing the first three elements, the enterprise, interstate commerce, and racketeering acts.

[00:23:40] Speaker 02:
So, given before there was a single witness call, they specifically tell the jurors, we're not disputing the existence of a criminal enterprise,

[00:23:53] Speaker 02:
So you're saying, but we still get to present evidence of a criminal enterprise, even though it's stipulated?

[00:24:00] Speaker 01:
And we would believe that is what old chief teaches, that a defendant cannot stipulate his way out of the full force of the evidence in the case.

[00:24:10] Speaker 01:
As this court in Martinez pointed out, a defendant can't put up a firewall against evidence.

[00:24:17] Speaker 02:
But doesn't it at least suggest that

[00:24:22] Speaker 02:
You know, when the district judge is acting as a gatekeeper under Rule 403, notwithstanding old chief, the district court certainly should exercise its discretion to narrowly allow enterprise evidence.

[00:24:40] Speaker 02:
I mean, you would concede that, shouldn't you?

[00:24:42] Speaker 02:
I mean, that should at least be a factor that the defendant says to the jury, you know, don't acquit this guy based on the absence of criminal enterprise.

[00:24:52] Speaker 01:
Absolutely, and we believe that that's exactly what the district court did.

[00:24:57] Speaker 01:
In fact, it said that it was going to corral the government's case.

[00:25:01] Speaker 01:
It specifically limited the evidence of other murders that the government could introduce robustly to a mere three examples, three different murders.

[00:25:14] Speaker 01:
And those were introduced not only to show the longevity and structure of the gang,

[00:25:20] Speaker 01:
but also for the purposes that were not conceded that Mr. de Leon had the motive required in order to commit the act charged in the indictment.

[00:25:35] Speaker 01:
As this court in Martinez emphasized, this type of evidence in a bracketeering or a vicar case in particular can go to show multiple different purposes.

[00:25:49] Speaker 01:
Specifically, it went to the importance of following orders within the gang.

[00:25:55] Speaker 01:
The three other murders that were admitted robustly all related to gang hits or murders that were ordered.

[00:26:03] Speaker 01:
Just like in this case, the Castillo murder was ordered by the higher-ups in the prison at the time.

[00:26:12] Speaker 01:
And that's relevant to show why Mr. de Leon would be motivated to follow orders

[00:26:19] Speaker 01:
and to believe that doing the crime would enhance his position in the gang.

[00:26:27] Speaker 01:
Additionally, the evidence is significant to show how violence played an essential role within the S&M and why that's another reason Mr. de Leon would believe that committing the crime would enhance his position in the gang.

[00:26:43] Speaker 01:
So if there are no other questions about the enterprise evidence, I'll turn to the last question about the motion for new trial or motion for indicative ruling.

[00:26:54] Speaker 00:
Before you do that, there's two aspects of the evidence.

[00:27:00] Speaker 00:
And the other one is 403.

[00:27:05] Speaker 01:
What about the 403 issue that she's raised?

[00:27:09] Speaker 01:
With respect to the enterprise evidence?

[00:27:10] Speaker 01:
Yes.

[00:27:11] Speaker 01:
So we would submit that the district court appropriately balanced it, that none of this evidence would have caused the jury to make an emotional response to the evidence.

[00:27:25] Speaker 01:
It's pretty emotional evidence, don't you think?

[00:27:28] Speaker 01:
Well, it's indicative of the violence of the S&M gang.

[00:27:32] Speaker 01:
But what's of particular note is that it related to other people, not Mr. de Leon, and that the evidence as to Mr. de Leon's murder

[00:27:41] Speaker 01:
was equally as violent.

[00:27:43] Speaker 01:
There was firsthand testimony from Mr. Jaramillo as to how the Castillo murder was committed.

[00:27:52] Speaker 01:
And so the district court was correct not to find that evidence of the S&M's other violence substantially outweighed its probative value to show de Leon's motivation in committing the crime as well as the structure and background of the gang.

[00:28:10] Speaker 00:
Part of the analysis does have to include whether or not a robust presentation has crossed the line in 403.

[00:28:23] Speaker 00:
And a semi-robust presentation, something less, would have been more appropriate.

[00:28:31] Speaker 00:
And therefore, the robust violates 403.

[00:28:34] Speaker 00:
What do you say to that?

[00:28:35] Speaker 01:
That the court took that into account when it was

[00:28:39] Speaker 01:
corralling the evidence, and as the trial went on, it limited the evidence more and more.

[00:28:45] Speaker 01:
And we believe that that's exactly what the district court was supposed to do, was to weigh the probative value and find that it was not, that the risk... But the court thought that the presentation that was made was robust, correct?

[00:29:00] Speaker 01:
Well, what the court said is that the government could present robust evidence of these three other murders.

[00:29:08] Speaker 01:
the testimony at trial, it actually all came in through the witness testimony of the people who had participated in those other crimes.

[00:29:17] Speaker 01:
There was no additional evidence.

[00:29:20] Speaker 01:
It was the witnesses testifying.

[00:29:22] Speaker 01:
And so those three crimes were the Garza murder, the Felix Martinez murder, and then the Matthew Cavalier murder.

[00:29:32] Speaker 01:
And we believe that they all had the probative value to show the importance of following orders and that it wasn't substantially outweighed by the prejudice, given that they involved other SNM members.

[00:29:45] Speaker 01:
The details of those were sparse compared to the details of the instant case.

[00:29:52] Speaker 01:
and that the court appropriately instructed the jury that Mr. de Leon was only on trial for the Castillo murder, not for any of these other murders.

[00:30:04] Speaker 02:
Let me ask you a question about, a follow-up on Judge Murphy for your question.

[00:30:11] Speaker 02:
So let's say I have a Bob Ackarach Association and Joe Schmo

[00:30:18] Speaker 02:
is on trial, the U.S.

[00:30:20] Speaker 02:
versus Joe Schmoe.

[00:30:21] Speaker 02:
And Joe Schmoe says, I am a member of the Bob Baccarat Association.

[00:30:25] Speaker 02:
Oh, that's nice.

[00:30:26] Speaker 02:
And then there's testimony that to be a member of the Bob Baccarat Association, you actually have to earn your bones.

[00:30:34] Speaker 02:
What does that mean?

[00:30:35] Speaker 02:
Well, you have to commit a murder.

[00:30:37] Speaker 02:
And so then Chris Colbert says, well, Joe Schmoe is a member of the Bob Baccarat Association.

[00:30:45] Speaker 02:
You don't have to be a rocket scientist to know that Joe Schmoe has committed a murder in order to be a member of my association.

[00:30:51] Speaker 02:
Whether he killed Frank Castillo or not to the jury may be besides the point.

[00:30:58] Speaker 02:
They know from this innocuous testimony about other people, not de Leon, that he earned his bones and earned his membership in this association by killing a guy.

[00:31:14] Speaker 02:
That's pretty prejudicial.

[00:31:19] Speaker 01:
I would agree that it's prejudicial, but it relates to other events besides the instant offense.

[00:31:26] Speaker 02:
Even though the tie-in is that they, like De Leon, is a member and he, like they, only earned their membership, including De Leon's, by killing a guy.

[00:31:43] Speaker 01:
We would submit that the probative value of the way in which the gang is organized, the rules of the gang, the longevity of the gang is significant to show why the individual charged with the specific FICAR Act would have been motivated to have done the act for the purposes required.

[00:32:08] Speaker 01:
And that is a significant

[00:32:11] Speaker 01:
element for the government in these types of cases.

[00:32:14] Speaker 01:
Indeed, this court reversed one of the other S&M cases on that element based on that type of evidence being insufficient.

[00:32:25] Speaker 01:
So we would submit that there is a 403 analysis, but the district court here appropriately made it and certainly didn't abuse his discretion or make an arbitrary or capricious decision.

[00:32:38] Speaker 01:
I see I'm almost out of time, but turning to the last issue, the first one you all raised, we would urge the court to view the district court's ruling as tantamount to a denial of the motion for new trial.

[00:32:51] Speaker 01:
Under Rule 37, there are three options, defer, deny, or make a statement that the court would either grant

[00:32:59] Speaker 01:
or finds a substantial issue so that this court can then remand.

[00:33:04] Speaker 01:
And of those three, what the district court here did that is most closely associated to one of those three is a denial.

[00:33:13] Speaker 01:
And for all the reasons outlined in the court's extensive memorandum of opinion about the insignificance of the DNA evidence and the significant other evidence at trial, we would urge this court to find that that was not an abuse of discretion to deny the motion for new trial

[00:33:27] Speaker 01:
and ask the court to affirm.

[00:33:33] Speaker 02:
Thank you, counsel.

[00:33:38] Speaker 02:
I think the appellant is out of time.

[00:33:44] Speaker 02:
This matter is submitted.

[00:33:55] Speaker 02:
Thank you very much.