Free Reply to Response - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 SBN #009975
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A ttorney for R ichard Trujillo Luhrs Tow er - Suite 403 45 W est Jefferson Street Phoenix, A Z 85003-2314 (602) 252-1282 e-m ail: fischercarm en@ qw est.net

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UNITED STATES OF AMERICA
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DISTRICT OF ARIZONA
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UNITED STATES OF AMERICA,
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C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

) ) Plaintiff, ) ) v. ) ) RICHARD TRUJILLO, ) ) Defendant. ) ____________________________________)

CR03-730-PHX-SRB REPLY RE: MOTION TO SEVER

The nonviolent defendants, Richard Trujillo, Benjamin Austin, Lorena Cisneros, and Juan Reyes, reply to the government's response to their motion to sever their trial from the violent defendants, Luis Cisneros, Felipe Cisneros, Paul Eppinger, Angel Rivera and Raymond Llamas. Timeliness: The government urges the court to deny severance "without any further consideration" because the nonviolent defendants waited too long to move for severance. (Response, pp. 1-2). The government does not complain of any prejudice by the filing of the second severance motion, only that it took too long to file after the July 2005 hearing. Rule 12 (b)(3)(D) requires Rule 14 motions to sever to be filed prior to trial. The court can grant a severance during trial because it has a continuing duty to grant a severance if prejudice appears.1 No deadline was set for the nonviolent defendants to move for severance after the court denied the first severance motion filed by Mr. Llamas. At the July 29, 2005 hearing the nonviolent defendants advised that they anticipated filing another severance motion. The court was not asked and did not set

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See Schaffer v. United States, 632 U.S. 511 (1960); United States v. Berkowitz, 662 F.2d 1127 (5th Cir. (Fla.) 1999) Document 1322 1 Filed 10/27/2005 Page 1 of 9

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C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

a deadline for filing the second severance motion. As a practical matter, each of the nonviolent defendants is represented by only one attorney appointed pursuant to the Criminal Justice Act. The government has two attorneys who have been working only this case for years, while each nonviolent defendant is represented by counsel responsible for many other cases. Thus, the motion is timely. Severance: A joint trial would unduly prejudice the non violent defendants. Justice requires a separate trial for the nonviolent defendants which would also promote judicial economy and avoid potential spillover because the case against the nonviolent defendants would be substantially shorter than the case against the violent defendants. Several categories of evidence which are irrelevant to the nonviolent defendants would be introduced at a joint trial all to the prejudice of the nonviolent defendants. 1. Conspiracy to Kill Police a Officer-Counts 31 & 32 The government greatly underestimates the unduly prejudicial impact upon the nonviolent defendants of the presentation of testimony to establish that several of the violent defendants engaged in a conspiracy to murder a Phoenix Police Detective while in custody pending trial in this case. (Response, pp. 3-4). In its request for the impanelment of an anonymous jury, the government implicitly acknowledged the highly prejudicial nature of this evidence when it wrote the following: The evidence that the jury will hear in support of the charges in the indictment-to include the murders of potential witnesses and a conspiracy to murder a police detective-is in and of itself enough to cause a reasonable jury to worry about its own safety. [citation omitted] In this case, it would not be unreasonable for a juror to worry that a defendant who will shoot a witness in the head, or hold a knife to another's throat, or order the murder of a detective, might also see fit to dispatch an associate to "persuade" a juror to do something besides vote for conviction. Dkt., #960, p. 11: 12-21. Evidence of a conspiracy to kill Detective Saldate would be inadmissible at a separate trial of the nonviolent defendants because there is not allegation, let alone evidence, that any of them were involved in this conspiracy. The government acknowledged fact, but argued that this evidence is just a fraction of all of the evidence and doesn't merit a separate trial. Whether this evidence is a fraction of the total evidence in terms of time or number of witnesses is of less importance than the unduly

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prejudicial of the evidence against the nonviolent defendants. There is no evidence that any of the nonviolent defendants have "ordered the murder of a detective" or "conspired to murder a police detective." A limiting instruction to jurors to consider the evidence against only four of the nine defendants will be insufficient given the shocking nature of the evidence. At a separate trial, this evidence would be inadmissible. Evidence that several of the violent defendants conspired to kill a police detective while awaiting trial establishes that joinder of the nonviolent defendants with the violent defendants prejudices them and justice requires severance pursuant to Rule 14. 2. New Mexican Mafia Three of the violent defendants are members of the New Mexican Mafia ("NMM") prison gang. None of the nonviolent defendants are members of the NMM. The only association between the nonviolent defendants and the NMM is their mutual association with the Cisneros. The government's motion for an anonymous jury (Dkt. #960) as well as recent testimony provide a preview of the type of evidence which can be expected regarding NMM at a joint trial. When urging an anonymous jury, the government argued that: In addition, as set forth in the Maya Affidavit, three of the defendants, Paul Eppinger, Angel Rivera, and Raymond Llamas, are documented and high-ranking members of the New Mexican Mafia. The New Mexican Mafia is the largest and most dangerous Hispanic prison and street gang in the state of Arizona. The New Mexican Mafia controls the illegal activities (including drug distribution, collection of "taxes," and commission of acts of violence, including murder) in Hispanic-controlled yards and units in Arizona stat prisons and jail, as well as significant illegal activity occurring in Hispanic neighborhoods in the cities of Arizona. Dkt. #960, p. 2: 19-25.

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Moreover, as discussed supra, Defendants Eppinger, Rivera, and Raymond Llamas are not only members or associates of the Cisneros Organization, but they are also highranking members of the New Mexican Mafia. According to the affidavit of Detective Maya, the New Mexican Mafia is a violent prison and street gang in Arizona that uses intimidation, assault and murder to protect its territory, deter rivals, and ensure obedience among its membership. Dkt. 960, p. 7: 7-11.

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In fact, in conspiring to murder Detective Saldate, Defendants Luis Cisneros, Raymond Llamas, Paul Eppinger, and Angel Rivera used members of the New Mexican Mafia who were present in the community.[footnote omitted] According to Detective Maya's affidavit, there are numerous members of the New Mexican Mafia currently on the streets and more are released every month from prison. [citation omitted] In addition, the New Mexican Mafia exercises considerable influence over the activities of other Latino or Chicano street gangs and routinely conscripts members of those gangs to do their bidding. [citation omitted] Dkt., #960, p. 9: 2-8.

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On September 29, 2005, Phoenix Police Detective Clint Davis testified at the hearing on Mr. Trujillo's pretrial motions regarding the basis for police decisions in executing search warrants on various residences. Much of Detective Davis' testimony focused upon the violent activities of the NMM, including the murder of police officer in Chandler and the conspiracy to murder the Director of the Arizona Department of Corrections. However, Detective Davis acknowledged that Mr. Trujillo is not a NMM member and was not involved in these violent acts. On October 24, 2005, Detective Davis testified extensively about the NMM in support of the government argument that traditional law enforcement techniques were ineffective against the Llamas Organization and a wire tap was required. Evidence of the NMM would be inadmissible at a trial of the nonviolent defendants because it is irrelevant and unduly prejudicial. The inevitable introduction of the NMM evidence at a joint trial leaves no doubt that the nonviolent, non-NMM members, will be prejudiced by a joint trial and justice requires a severance. A limiting instruction will be of virtually no value when unduly prejudicial evidence regarding the NMM is admitted against some of the defendants at a joint trial. 3. Moreno Murders-Counts 5, 6, 7, 8, 13, & 14 None of the nonviolent defendants are charged with the Moreno murders. The government has made vague allegations against Lorena Cisneros and Richard Trujillo. (Response, p. 11: 3-12 & p. 12: 14-23) The government does not allege that either Benjamin Austin or Juan Reyes were involved in the Moreno murders. (Response, pp. 13-15) The government contends that Lorena Cisneros "help[ed] to arrange the Moreno murders." The

27 basis of the government's evidence is phone calls which the government describes as "cryptic." 28
C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

The government contends that Mr. Trujillo also assisted in the Moreno murders based upon

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1 police interpretations of phone calls and surveillance. The government contends that these calls and 2 surveillance establish that Luis Cisneros, Paul Eppinger and Angel Rivera used Mr. Trujillo's home as 3 a "staging point prior to heading to New Mexico to carry out the Moreno murder." The government 4 also claims that during an intercepted phone call someone indicated that Mr. Trujillo provided "toys," 5 which really meant guns, to be used in the murders.2 The government also claims that Mr. Trujillo 6 concealed the whereabouts of Luis Cisneros after he left for New Mexico based upon cryptic calls. 7

The government wrote, in the same paragraph detailing its theory of Mr. Trujillo's involvement

8 in the Moreno murders, that on February 23, 2000, numerous weapons were seized from Mr. Trujillo's 9 home. This could mislead a reader to believe a firearm associated with the Moreno murders was seized. 10 This is not the case. None of the firearms seized from Mr. Trujillo's home were associated with the 11 Moreno murders. 12

The fact that the government has not charged either Lorena Cisneros or Richard Trujillo with

13 the murders speaks volumes about the quality of the government's evidence. If the government had 14 evidence to establish that either Mr. Trujillo or Ms. Cisneros had aided or abetted in the Moreno 15 murder, they would have been charged with the murders. 16

At a separate trial, evidence of the Moreno murders would be inadmissible against the

17 nonviolent defendants and even against Mr. Trujillo and Ms. Cisneros. The government lacks sufficient 18 evidence to introduce the evidence against either Lorena Cisneros or Richard Trujillo pursuant to Rule 19 404(b), Federal Rules of Evidence. 20

Evidence of other bad acts of the accused are generally inadmissible pursuant to Rule 404(b)

21 of the Federal Rules of Evidence. Rule 404(b) provides: 22 23 24 25 26 27 28
C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case

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Initially police suspected that the telephone activity revolved around a drug transaction and at that time interpreted toys to mean drugs. When the investigation shifted to the Moreno murders, toys was interpreted to mean guns. In the application for CWT 216, the affiant wrote that, Felipe Cisneros told Richard Trujillo "to get that two (quantity of drugs) out of there. Richared said, the toys. Felipe Cisneros responded right away." Document 1322 5 Filed 10/27/2005 Page 5 of 9

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shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. A four-part test should be used by the district court to apply Rule 404(b). Under that test,

4 evidence of the Moreno murders would only be admissible against Ms. Cisneros or Mr. Trujillo, if: 5 6 7 8 9

(1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) where the evidence is offered to prove identity the act is similar to the offense charged. If the proposed evidence meets these requirements, then the court must apply the Rule 403

10 balancing test to determine if the probative value of the evidence is outweighed by the danger of unfair 11 prejudice. See United States v. Luna, 21 F.3d 874 (1994). 12

Setting aside the other requirements, the evidence of the involvement of either Mr. Trujillo or

13 Ms. Cisnero in the Moreno murders is insufficient to support a finding that they were aware of and 14 assisted in the Moreno murders. 15

Even if the government's interpretations of the phone calls and surveillance are correct, which

16 Mr. Trujillo and Ms. Cisneros dispute, they do not establish that they were aware that the Morenos were 17 going to be killed. If the government had evidence to support a finding that either Mr. Trujillo or Ms. 18 Cisneros aided and abetted anyone in the Moreno murders, Mr. Trujillo and Ms. Cisneros would have 19 been charged with the murders. Thus, the lack of evidence is an insurmountable obstacle which will 20 prevent the government from presenting evidence of the Moreno murders a trial of any of the 21 nonviolent defendants. 22

In addition, Rule 403, Federal Rules of Evidence, precludes the government from introducing

23 evidence of the Moreno murders against the nonviolent defendants because the danger of unfair 24 prejudice outweighs any probative value. 25

Evidence that two witnesses were murdered to silence them is so prejudicial against the

26 nonviolent defendants that justice requires a separate trial. 27 28
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4. Aaron Romero Murder-Counts 3 & 4 There is no allegation that any of the nonviolent defendants were involved in the murder of

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1 Aaron Romero. Thus, that evidence would be inadmissible at their separate trial as it is irrelevant and 2 unduly prejudicial. This evidence is so unduly prejudicial against the nonviolent defendants that justice 3 requires a separate trial. 4 5

5. Conspiracy to Murder Steven and Jose Moreno Sr.-Counts 9, 10, 11, 12, 15 & 16. There is no allegation that any of the nonviolent defendants were involved in the two

6 conspiracies to murder Steven Moreno and his father, Jose Moreno, Sr. Thus, that evidence would be 7 inadmissible at their separate trial as it is irrelevant and unduly prejudicial. Again, evidence that some 8 of the violent defendants conspired to murder witnesses on two occasions would be so unduly 9 prejudicial against the nonviolent defendants that justice requires their separate trial. 10 11

6. Firearms Counts-33, 34, 35 & 36. These counts involve either Luis or Felipe Cisneros. Evidence that Luis or Felipe Cisneros

12 committed firearms violations is inadmissible at a separate trial of the nonviolent defendants because 13 it is irrelevant. 14

Thus, evidence regarding most of the thirty-six counts in the joint indictment, including all the

15 violent counts, would be inadmissible at a trial of the nonviolent defendants. The separate trial would 16 be limited to the nonviolent offenses involving stolen vehicles and drugs as set forth in the following 17 chart. 18 19 20 21 22 23 24 25 26 27 28
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Count 1. RICO 2. RICO Consp. 17. Stolen Vehicle Consp. 18. Stolen Vehicle Trans. 19. Drug Consp. 20. Drug Consp. 21. Drugs 22. Drugs 27. Drugs 28. Drugs

Lorena Cisneros not charged charged charged not charged not charged not charged not charged not charged not charged not charged

Richard Trujillo not charged charged not charged not charged charged charged not charged not charged charged charged

Benjamin Austin charged charged not charged not charged not charged charged charged charged not charged not charged

Juan Reyes not charged charged charged charged not charged not charged not charged not charged not charged not charged

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C a rm e n L . F is ch e r L u h rs To w e r, S u ite 4 0 3 45 W . Jefferson Street Phoenix, Arizona 85003 (602) 252-1282

29. Drugs 30. Drug House

not charged not charged

charged charged

not charged not charged

not charged not charged

7. RICO and RICO Conspiracy To prove these counts, the government must establish a violation of 18 U.S.C. 1962(c) and (d). That requires proof of a pattern of racketeering activity which is defined as at least two acts of racketeering activity. 18 U.S.C. §1961(5). The ten drug offenses and two stolen vehicle offenses alleged in the indictment are racketeering acts. 18 U.S.C. §1961(1). Of course, murder is also a racketeering act. 18 U.S.C. §1961(5) However, a RICO case can be established based upon stolen vehicles and drug distribution offenses. The ten stolen vehicle and drug counts include conspiracy counts and thus more than ten potential racketeering acts. The government has no burden to establish a murder, or any violent crime, was committed to establish a pattern of racketeering. The government's threat to over-try its case against the nonviolent defendants should not factor into this court's decision to sever the nonviolent defendants from the violent defendants. The government could try its case against the nonviolent defendants in a streamlined efficient fashion by not present evidence regarding the twenty counts which do not involve the nonviolent defendants. The government argues that the court should conduct a single trial to avoid having 225 witnesses, including the Moreno family and confidential informants testify twice. (See Response, p. 16: 10-16). If the trials are severed, the government can streamline its case by limiting it to the drugs and stolen vehicle counts to establish the RICO counts and thereby avoid calling 225 witnesses, likely multiple confidential informants and many of its 225 witnesses. The government could also choose which witnesses would testify in the violent defendants' trial and which would testify in the nonviolent defendants' trial. Severance would necessarily pare down the witness list for the violent defendants as well as the government could streamline its case by choosing to not present evidence of all of the counts against the nonviolent defendants. Moreover, at a separate trial, the evidence of murders, conspiracies to murder witnesses and police, and other violent acts would be inadmissible to establish the RICO and RICO Conspiracy counts as its probative value is outweighed by the danger of unfair prejudice. Rule 403, Federal Rules of Evidence. The government argued that it should be permitted to present "all relevant evidence"

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1 available to establish the existence of the racketeering enterprise. (Response, p. 6: 22-23) This 2 proposition is correct, but only to the extent that other rules of evidence, such as Rule 403, do not 3 preclude the introduction of otherwise relevant evidence. 4

Clearly, if the government is able to establish that the racketeering enterprise existed with

5 evidence of its stolen vehicle and drug trafficking enterprises, evidence of murders and witness 6 intimidation is not only cumulative, but unduly prejudicial and thus, inadmissible. Even if the 7 government would prefer to shock jurors with the "trail of dead bodies," the federal rules of evidence 8 and the due process clause will not permit it in a separate trial of the nonviolent defendants. 9

Thus, the government's argument that it will present virtually the same cases against the

10 nonviolent defendants as it will against the violent defendants should be given no further consideration 11 by this court in deciding whether the joinder of the nonviolent defendants with the violent defendants 12 "appears to prejudice a defendant." See Rule 14, Federal Rules of Criminal Procedure. There can be 13 no doubt that a joint trial will be unduly prejudicial to all four of the nonviolent defendants and justice 14 requires separate trials. 15

A severance of the nonviolent defendants will avoid the potential spillover prejudice and

16 enhance judicial economy. 17 18 19 20 21 22 23 A paper courtesy copy of this motion 24

Respectfully submitted this 27th day of October, 2005.

/s/ CARMEN L. FISCHER Attorney for Richard Trujillo delivered this 28th day of October, 2005 to: Judge Susan R. Bolton

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Capital Case Staff Attorney
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/s/
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