Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona STEVEN C. YARBROUGH Special Assistant U.S. Attorney Two R enaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 NM State Bar No.: 8789

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-730-PHX-SRB Plaintiff, v. Luis Cisneros, et al., Defendants. On September 26, 2005, Defendants Benjamin Austin, Lorena Cisneros, Juan Reyes, and Richard Trujillo ("Movants") filed a motion to sever their trial from the trial of their codefendants. (Dkt. 1233). On September 27, 2005, Movants filed a supplement to this motion (Dkt. 1240). On October 6, 2005, this Court granted the United States' motion for a one week extension in time to file its response. (Dkt. 1272). As set forth in this response, the Court should reject Movants' motion to sever because the motion is untimely, because the motion re-raises arguments the Court has already rejected, and because, to prove its RICO conspiracy charges, the United States must present substantially the same evidence against Movants as against their co-defendants. Therefore, severing the trial of Movants from the trial of non-movants would result in two lengthy, nearly identical trials, is legally unnecessary, and would be inimical to judicial economy. I. The Motion is Inexcusably Late and, Therefore, Should Be Denied Movants' motion is untimely. On October 15, 2004, this Court set a deadline of January 18, 2005, for the filing of all severance motions. (Dkt. 610). However, in its April 29, 2005 Order, the Court indicated that it might be receptive to a motion for severance filed on behalf of Movants. (Dkt. 1030 at 22-23). During a hearing on July 29, 2005, Movants informed the UNITED STATES' RESPONSE TO DEFENDANTS' MOTION TO SEVER AND SUPPLEMENTAL MOTION TO SEVER

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Court that they would likely file their motion within the next month. Yet, rather than doing so, Movants waited until the end of September, five months after the Court's April 29, 2005 Order, to file the present motion and supplement. Neither the motion nor the supplement reveals any valid reason for this delay. Given the content of these documents, it is apparent that Movants could have filed the exact same documents long ago. Thus, their motion is inexcusably late and should be rejected without further consideration. II. To the Extent Movants Re-Present Arguments this Court Has Already Rejected, this Court Should Reject Those Arguments Again, without Further Consideration As this Court's April 29 Order demonstrates, severance issues have already been

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extensively litigated. (Dkt. 1030 at 1-2). 1 In the previous motions and responses, the parties litigated a number of issues that Movants have re-asserted in their present motion and

11 supplement. To the extent the Court has already rejected those arguments, the United States 12 urges the Court to do so again. 13 A number of the arguments Movants raised in previous motions failed because Movants 14 neglected to provide evidence in support of those arguments. Although Movants have re15 asserted these arguments, they still have failed to present evidentiary support. For instance, 16 in their supplement, Movants assert that Defendant Lorena Cisneros may testify in a manner 17 inconsistent with the statements of other Defendants and that this may create inconsistent or 18 antagonistic defenses. (Dkt. 1240 at 4, 8). In rejecting a similar argument last April, the Court 19 held that "the non-capital Defendants have failed to establish the existence, as opposed to the 20 mere potential, of defense theories or strategies that conflict or are antagonistic with those of 21 22 23 24 25 26 27 28 In addition to the M otions listed in the April 29, 2005 Order, Defendant Lorena Cisneros filed a motion to sever on March 30, 2004 (Dkt. 227). Rather than restate that which it has already said in its several responses, the United States incorporates by reference the responses listed in the Court's April 29 Order, along with its Response (Dkt. 257) and Sur-reply (Dkt. 335) to Defendant Lorena Cisneros' previous motion to sever,
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the capital Defendants." (Dkt. 1030 at 22).2 Because Movants have still not presented any

Defendant Raymond Llamas, who is not part of the present motion, joined in Movants' (continued...) 2

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evidence to support their speculative contention that joinder would lead to antagonistic defenses, this Court should once again reject this argument. Similarly, Movants re-assert that joinder will prevent them from presenting exculpatory evidence and from calling certain witnesses at trial. (Dkt. 1233 at 4; Dkt. 1240 at 4, 8). As the United States previously briefed, to be seriously considered these contentions must be supported by evidence. Because these contentions are speculative and lack any evidentiary support, this Court should reject them again. Finally, Movants re-assert their argument that they will be prejudiced by the procedures that will be followed to pick a death qualified jury. (Dkt. 1240 at 8). Defendants, however, add nothing to their previous arguments on this point. Therefore, for reasons the United States has already briefed, (See Dkt. 335 at 1-4; Dkt. 856 at 6-11), this Court should again reject this argument. (See Dkt. 1030 at 21-23, addressing this argument). III. Granting M ovants' Motion for Severance Would Not Result in a Shorter Trial for This Group, or Prevent Any Spillover Prejudice, Because the United States Would Have to Present Substantially the Same Evidence Against Movants as Against Non-Movants. Movants argue that they are non-violent and that they are charged in far fewer counts than non-movants. Therefore, Movants argue, their trial should be severed from the trial of their co-defendants. Underlying their argument is the presumption that the evidence the United States intends to present against them at trial greatly differs from the evidence the United States intends to present against their co-defendants. Because Movants' argument is based on this underlying presumption, if the presumption fails, so does their argument. The United States acknowledges that evidence it will present to prove the charges contained in Counts 31 and 32 (relating to the 2003 conspiracy to murder Detective Saldate) do not relate to Movants. However, because the evidence the United States intends to present that relate to Counts 31 and 32 constitute such a small fraction of the United States' overall

(...continued) previous motion to sever. 3

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evidence, the presentation of this small fraction of evidence provides little, if any, reason to grant the severance Movants request. This is particularly true in light of the enormous adverse effect such a severance would have on judicial economy. Except for the small fraction of evidence related to Counts 31 and 32, evidence presented against Movants will be substantially the same as evidence presented against their codefendants. This is because, in an effort to prove its RICO conspiracy charges, the United States must introduce evidence to prove the existence of an enterprise, the continuity of this enterprise, and an agreement that at least one member of the enterprise commit two acts of racketeering. To meet its burden of proof, the United States must present evidence of the acts Movants' co-defendants committed, even if those co-defendants are not on trial with Movants. A. Evidence of the 2003 Conspiracy to Murder Detective Armando Saldate Comprises a Small Fraction of the Evidence the United States Intends to Present at Trial, and Presentation of This Evidence Presents Little Danger of Spillover Prejudice In its April 29, 2005 Order, the Court raised the issue of whether the evidence the United States would present at trial involving Movants only would be meaningfully different than the evidence the United States would present at a trial involving their co-defendants. (Dkt. 1030 at 22-23). In raising this issue, the Court pointed out that Movants are charged with numerically fewer crimes than their co-defendants, that Movants are not substantively charged with any of the murders, and that Movants are not charged with the conspiracy to murder Detective Saldate. With respect to the conspiracy to murder Detective Saldate, none of the evidence the United States intends to present regarding this crime relates to any of the Movants. This fact, however, falls far short of overcoming the presumption of joint trials, a presumption particularly strong in RICO cases. Zafiro v. United States, 506 U.S. 534, 537 (1993) (joint trials "promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.") (citations omitted); Richardson v. Marsh, 481 U.S. 200, 209-10 (1987) ("Many joint trials -- for example, those involving large conspiracies to import and distribute illegal drugs -- involve a dozen or more codefendants. . . . It would impair both the 4

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efficiency and the fairness of the criminal justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes the trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability -- advantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts."); United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir. 1991) ("If Rule 8(b) joinder were construed to require a closer relationship between charged acts than is required by RICO's `pattern of racketeering' requirement, joinder might be prohibited in cases where Congress intended it."); United States v. Richardson, 167 F.3d 621, 624 (D.C. Cir. 1999) ("Joint trials are favored in RICO cases."). The first reason for this is that evidence of the conspiracy to murder Detective Saldate comprises a small fraction of the overall evidence the United States intends to present against all Defendants. Therefore, the cost to judicial economy of having Movants sit through this very small part of the United States' case that does not concern them is overwhelmingly outweighed by the tremendous savings in judicial resources that would be realized through having a single trial, as opposed to two lengthy, and nearly identical, trials. Second, presentation of this evidence in a joint trial would not cause unfair "spillover prejudice" to Movants. The Saldate murder conspiracy occurred years after the commission of the most current charges any of the M ovants face. No reason exists to think that Movants would be prejudiced by the presentation of these charges against Defendants Luis Cisneros, Paul Eppinger, Angel Rivera, and Raymond Llamas. Indeed, if this were the case, Defendant Felipe Cisneros, who is not charged with these crimes, could not be tried with non-movants. Thus, evidence of the conspiracy to murder Detective Saldate should not factor into severance considerations. See United States v. Sarkisian, 197 F.3d 966, 977 (9th Cir. 1999) (upholding 5

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joinder even though co-defendant's involvement in scheme was more than defendant's); United States v. Matta-Ballesteros, 71 F.3d 754, 770-71 (9th Cir. 1995), as amended by 98 F.3d 1100 (9th Cir. 1996) (severance denied even though evidence involved three homicides and marijuana enterprise with which defendant was not involved); United States v. Ebner, 782 F.2d 1120, 1127 (2d Cir. 1986) (participation in conspiracy for shorter period than codefendants did not require severance); United States v. Stirling, 571 F.2d 708, 733 (2d Cir. 1978) (defendant properly tried with co-conspirators though he did not participate in every detail of the conspiracy). B. In Showing the Existence and Continuity of the Enterprise Charged, the United States Will Present Substantially the Same Evidence Against Movants as Against Their CoDefendants Aside from evidence related to the conspiracy to murder Detective Saldate, the United States would present substantially the same evidence in a trial against Movants as in a trial against their co-defendants. This is true because all non-fugitive Defendants ­ including the four Movants ­ are charged with RICO conspiracy. To prove its RICO conspiracy charges, the United States must first prove the existence of an enterprise. See, 18 U.S.C. § 1962(d). In this case, the indictment alleges the existence of an association-in-fact enterprise known as the Cisneros Organization. Specifically, the

indictment alleges that the Cisneros Organization consisted of a group of persons associated together for the common purpose of earning money by stealing cars, switching VINs, and selling drugs. As part of their defense, the United States expects Movants to assert that this enterprise never really existed, and that they never conspired for such an enterprise to exist. Therefore, the United States should be permitted to present all relevant evidence available to establish the existence of this enterprise. Given its inherent nature, an association-in-fact enterprise "is often-times more readily proven by what it does, rather than by abstract analysis of its structure." United States v. Fernandez, 388 F.3d 1199, 1224 (9 th Cir. 2004) (internal quotations omitted; emphasis in original). Because the acts various members of an enterprise commit are what establishes the 6

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existence of the enterprise, those acts are relevant and admissible. To prove the existence of an association-in-fact enterprise, the law allows the United States to present evidence of all predicate acts and other acts committed that demonstrate the existence of an enterprise, even if the defendant against whom the evidence is offered is not charged with personally committing those acts. See United States v. Coonan, 938 F.2d 1443, 1553 (2 nd Cir. 1991) (admission of evidence of murders by enterprise members occurring prior to the defendant's joining the enterprise was proper to show the existence of the enterprise); United States v. Keltner, 147 F.3d 662, 667-68 (8 th Cir. 1998) (uncharged criminal conduct by coconspirator admissible to prove the enterprise); United States v. Salerno, 108 F.3d 730, 738-39 (7 th Cir. 1997) (uncharged extortionate collections by defendants admissible to prove the enterprise). In addition to proving the existence of an enterprise, various acts that the non-moving codefendants committed are relevant to prove the continuity or threat of continuity of the enterprise. In United States v. Turkette, 452 U.S. 576, 583 (1981), the Supreme Court stated that the existence of an association-in-fact enterprise is proven "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." Thus, the United States carries the burden of establishing the existence of an organization that was ongoing, and which functioned as a continuing unit. To meet this burden, the United States is permitted to establish continuity by presenting the totality of all the co-defendants' unlawful conduct. See United States v. Richardson, 167 F.3d 621, 625-26 (D.C. Cir. 1999); United States v. Alkins, 925 F.2d 541, 551-53 (2 nd Cir. 1991) (the requisite continuity may be established against a defendant by evidence of crimes by other members of the enterprise not charged in the indictment); United States v. Gonzalez 921 F.2d 1530, 154445 & n.23 (11th Cir. 1991) (evidence of continuity was not limited to the defendant's single short lived episode of interstate travel to possess or import drugs and the act of importation and possession of the drugs on the same day, but rather was adequately established by evidence of ongoing drug trafficking by other members of the enterprise).

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Indeed, in proving the existence of a RICO enterprise, the United States may present evidence of all racketeering acts the enterprise committed, even if no one is charged with having committed those racketeering acts. United States v. Glecier, 923 F.2d 496, 498-500 (7 th Cir. 1991). Thus, even though most of the Movants are not charged with having personally committed any racketeering acts, evidence of all racketeering acts the enterprise committed, including the Moreno murders, as relevant to prove the existence of an enterprise Movants contest ever existed.3 C. To Meet Its Burden of Showing that M ovants Agreed at Least One Person W ould Commit Two Acts of Racketeering, The United States Must Present Evidence of Racketeering Acts That the Non-Moving Co-Defendants Agreed to Commit and Did Commit The United States also carries the burden of proving that M ovants agreed to participate in

11 the enterprise with the knowledge that at least one member of the RICO conspiracy would 12 commit at least two predicate racketeering acts in the conduct of the affairs of the enterprise. 13 14 each Movant's knowledge of what each other member or associate of the enterprise did 15 becomes relevant, even if the charged conspirator did not personally take part in another's 16 17 18 19 Analysis of the Supreme Court's unanimous decision in Salinas v. United States, 522 U.S. 20 52, 63-65 (1997), demonstrates the need for the United States to present evidence of the 21 actions of a more culpable principal to prove 18 U.S.C. § 1962(d) conspiracy charges against 22 a less culpable co-conspirator. In Salinas, a sheriff committed at least two acts of racketeering 23 when he accepted numerous bribes. Id. at 66. Although less culpable, his deputy knew about 24 and agreed to facilitate the scheme. Id. The Supreme Court noted that even though the deputy 25 26 27 28 Defendant Benjamin Austin is charged and Count 1, including personally committing racketeering acts 27, 28, and 30. 8
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18 U.S.C. § 1962(d); United States v. Frega, 179 F.3d 793, 810 n.21 (9 th Cir. 1999). Therefore,

actions. See, e.g., United States v. Tille, 729 F.2d 615, 619-20 (9 th Cir. 1984); United States v. Ashman, 979 F.2d 469, 492 (7 th Cir. 1992); United States v. Crockett, 979 F.2d 1204, 120809 (7 th Cir. 1992); United States v. Carlock, 806 F.2d 535, 547 (5 th Cir. 1986).

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may not have accepted or agreed to accept any of the bribes, his knowledge that the sheriff accepted numerous bribes, combined with the deputy's agreement to facilitate this scheme, "is sufficient to support a conviction under § 1962(d)." Id. at 66. The Court further stated, "[t]he interplay between subsections (c) and (d) [of 18 U.S.C. § 1962] does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense." Id. at 65. Thus, it was the racketeering acts another co-conspirator committed that convicted the deputy in Salinas of RICO conspiracy. Similarly, the acts of the non-moving co-defendants provide evidence through which Movants, who had knowledge of these acts, may be convicted of RICO conspiracy. Thus, the acts of the non-moving co-defendants are admissible in the case against Movants. As a result of its need to present evidence of the acts of non-movants to prove its case against Movants, the United States would present substantially the same evidence in a trail against Movants as in a trial against their co-defendants, should this Court grant Movants' motion. D. Movants' Characterization of Themselves as "Non-Violent" is Irrelevant and Inaccurate Movants' characterization of themselves as "non-violent" and of their co-defendants as

17 "violent" is irrelevant. As set forth above, evidence of violent acts committed in furtherance 18 of the enterprise is admissible against Movants to show the existence of the enterprise and the 19 continuity of that enterprise. Further, that Movants knew about those acts is admissible to 20 demonstrate the requisite agreement to commit a RICO offense, even if Movants did not 21 personally commit these violent acts. 22 However, analysis of Movants' involvement with the Cisneros Organization demonstrates 23 that Movants are in fact violent, and also that they were well aware of violence their co24 conspirators planned to commit, and did commit, to benefit the enterprise. A separate analysis 25 of the charges against each Movant and some of the evidence against each Movant is useful 26 27 28 9

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in considering whether a separate trial against any of them would conserve judicial resources or is necessary to prevent prejudicial spillover. Lorena Cisneros. Defendant Lorena Cisneros is charged with two counts: RICO

conspiracy (count 2) and stolen vehicle conspiracy (count 17). Unlike many of her codefendants, Defendant Lorena Cisneros was involved in the Cisneros Organization from its inception in 1993. During most of this time, she lived with the head of the enterprise and, for at least part of the time, also lived with the underboss of the organization. Defendant Lorena Cisneros began her involvement with the Cisneros Organization in 1993, when she possessed a stolen and VIN-switched 1986 Hyundai Excel. Although her future brother-in-law, Felipe Cisneros, pled guilty to this crime, taking the rap alone, evidence indicates that Defendant Lorena Cisneros was fully aware that she drove a car that her brotherin-law had stolen and VIN-switched. Her involvement with the Cisneros Organization continued through 1995, when she purchased numerous guns, including assault weapons, for her convicted felon husband and convicted felon brother-in-law. In 1996, police searched her residence and found a broken steering wheel column, an ignition bypass unit, a slide hammer (used to break steering wheel columns), and other evidence of her continued involvement in a VIN-switching operation, including two stolen and VIN-switched vehicles, one of which she had been driving for more than a year. In 1998, she took an active role in handling the finances related to LC Auto, the shell business the Cisneros Organization used as a cover for its chop shop operation. On at least one occasion, this shop also served as a site to manufacture methamphetamine for the Organization. In 1999, Defendant Lorena Cisneros personally drove to El Paso, Texas, and met with Rene Holguin, the source for many of the salvage vehicles used in the enterprise's VINswitching operation. During this trip, she retrieved a duplicate set of records that RG Auto had provided to Arizona DPS Investigator Dan Kelly. Investigator Kelly had sought information and records from RG Auto to flesh out the relationship between three automobile-related businesses: RG Auto in El Paso, Texas; Moreno Auto Salvage in Lovington, New Mexico; 10

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and the LC Auto business in Mesa, Arizona, that her husband, Defendant Luis Cisneros, owned. As the Court knows from evidence presented at the numerous detention hearings, Defendant Lorena Cisneros culminated her involvement with the enterprise by helping to arrange the Moreno murders. Much of the evidence of her knowledge and involvement with the Moreno homicides is contained in cryptic conversations that police intercepted the day before the murders occurred. Her ability to converse with Defendant Luis Cisneros in a cryptic manner, and her clear understanding of his cryptic statements, provide evidence that she knew what the Cisneros Organization was up to during that time. Thus, evidence at trial will demonstrate that, as a conspirator, Defendant Lorena Cisneros had knowledge of the activities of the Cisneros Organization and played a central role in assisting the activities of the Cisneros Organization over the entire period of its existence. To prove its charges against Defendant Lorena Cisneros, the United States must demonstrate that she agreed that a member of the conspiracy intended to commit at least two racketeering acts. Among the racketeering acts about which the United States will present evidence of Defendant Lorena Cisneros' knowledge, are the conspiracy to murder, and the subsequent murder, of the Morenos. In addition to these murders, however, the United States intends to present the full panoply of evidence of crimes about which she knew, and which various members of the enterprise committed to facilitate the goals of the enterprise between 1993 and 2000. Defendant Richard Trujillo Evidence at trial will show that from at least 1996 through 2000, Defendant Richard Trujillo stored drugs and guns for the Cisneros Organization. Although Defendant Richard Trujillo does not appear to have been intimately involved in the VIN switching aspect of the Cisneros Organization, he was intimately involved with various other day to day affairs of the Cisneros Organization during this period of more than four years. For instance, in 1996, the Organization supplied him with large amounts of ephedrine to be used in the manufacture of 11

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methamphetamine. In 1998, Defendant Trujillo drove a truck connected to the Cisneros Organization and the Morenos in Lovington, New Mexico. Upon examination, police found evidence that this truck had been constructed with at least some stolen parts and, in a hidden compartment, found approximately one-pound of methamphetamine. On April 27, 1999, police executed a search warrant at the residence of Defendant Trujillo and found surveillance cameras, weapons, seven ounces of cocaine, approximately two ounces of methamphetamine, and $5,000 in cash. Testimony from various confidential witnesses will establish that Defendant Trujillo supplied various drugs from this residence on behalf of the Cisneros Organization. When police intercepted various telephone lines in 1999 and 2000, including Defendant Trujillo's, they confirmed that Defendant Trujillo was a trusted and vital member of the Cisneros Organization. On nearly a daily basis, he spoke with Defendant Felipe Cisneros in coded language about one drug transaction or another. Moreover, the intercepted calls will also demonstrate that Defendant Trujillo had knowledge of and assisted in the conspiracy to murder the Morenos in January 2000. Specifically, these calls and law enforcement surveillance will establish that Defendants Luis Cisneros, Paul Eppinger, and Angel Rivera used Defendant Trujillo's residence as a staging point prior to heading to New Mexico to carry out the M oreno murders. Further, intercepted calls indicate that Defendant Trujillo provided the "toys" or guns to be used in the murders. He then affirmatively concealed the whereabouts of the Organization's leader, who had left for New Mexico to silence the Morenos. Just over one month after the Moreno murders, on February 23, 2000, police again executed a search warrant of Defendant Trujillo's house. Again, they found a surveillance camera, numerous weapons, and indicia of drug distribution. Defendant Trujillo's conviction for gun related offenses, evidence of his frequent possession of assault weapons and other guns, his continuous involvement with large amounts of drugs, and his involvement in the Moreno murders, all belie Defendant Trujillo's characterization of himself as a "non-violent" defendant. Because evidence will show that 12

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Defendant Trujillo was in fact violent, his spillover argument has little merit. Further, because violent acts others committed to benefit the Cisneros Organization are admissible against Defendant Trujillo to prove both the existence of an enterprise and the existence of an agreement to commit a RICO violation, no serious risk of prejudicial spillover exists. Defendant Juan Reyes Defendant Juan Reyes is charged with RICO conspiracy (Count 2), a stolen vehicle conspiracy (Count 17), and with the interstate transportation of a stolen vehicle (Count 18). On February 27, 1998, police caught Defendant Reyes driving a stolen, VIN-switched vehicle in Socorro, New Mexico. A fact not obvious from the indictment, however, is the manner in which this offense is inextricably intertwined with the Moreno homicides. Like many of the VIN-switched vehicles at issue in this case, the salvage or "donor" vehicle (the vehicle from which the VIN plate was harvested and then placed on the stolen vehicle) came from RG Auto in El Paso, and then title passed to Jose Moreno in Lovington, New Mexico. Based on Defendant Reyes' arrest, the district attorney's office in Socorro, New M exico, brought charges against Defendant Reyes. The state listed Jose Moreno as one of the state's witnesses. Once the state charged Reyes, Alan Simpson, Defendant Luis Cisneros' attorney in Phoenix, intervened by writing a letter on behalf of Defendant Reyes to the New Mexico state judge. The state case against Defendant Reyes was pending throughout 1999 and well into 2000. Evidence at trial will show that the Cisneros Organization's motives for these murders included helping Defendant Reyes with his state case, and simultaneously silencing two witnesses who could imperil the continued viability of the Organization. Thus, evidence related to the stolen vehicle in which Defendant Reyes was found on February 27, 1998 directly ties into the June 1999 conspiracy to murder the Morenos and the January 2000 murders of Jose Moreno and Joe M anuel Moreno. In addition, the United States will present evidence that Defendant Reyes was a member of the Cisneros Organization as early as 1996. As part of his activities, Defendant Reyes 13

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actively participated in the stolen vehicle/VIN-switching aspect of the Organization. When Defendant Luis Cisneros negotiated with Sean Bullock to trade stolen vehicles for cash, a boat, and a motorcycle (negotiations that occurred just days before Bullock's brain matter was found splattered in the back seat of his Cadillac), Defendant Reyes accompanied Defendant Luis Cisneros. Further, Defendant Reyes was fully aware of illegal drugs the Cisneros Organization distributed across state lines. Although the United States opposes a severance of any of the Movants, if the trial of Defendant Reyes were severed from the trial of any of his co-defendants, the United States requests that the trial against him occur after the trial against his co-defendants. Further, if the United States' case were to be previewed, it would make more sense for it to be previewed by Defendant Reyes than by the death eligible Defendants who face much more serious charges and penalties, and have a much greater incentive to harm or intimidate confidential witnesses once their identities and testimony are exposed. In addition, if Defendant Reyes were severed from the group and his trial proceeded first, the United States might have to present a severely pared down case against him rather than reveal much of its case to the defendants yet to be tried. This trial sequence would be contrary to the ends of justice as, for the protection of its witnesses, the United States might feel compelled to forego presenting all evidence available to prove the commission of a crime. Benjamin Austin Defendant Austin cooked methamphetamine for the Cisneros Organization. Police found latent fingerprints from Defendant Austin on equipment used to cook methamphetamine at both the March 1999 and February 2000 methamphetamine laboratories. Police also arrested Defendant Austin at the scene of the March 1999 methamphetamine laboratory. As a result, Defendant Austin is charged with substantive RICO (Count 1), as well as RICO conspiracy (Count 2), conspiracy to distribute controlled substances (Counts 19 and 20), attempted manufacture of a controlled substance (Count 21), and the manufacture of a controlled substance (Count 22). 14

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Just as with the other Movants, to prove its case against Defendant Austin, the United States must present evidence of the existence of the enterprise as well as prove that at least one member of the RICO conspiracy planned to commit at least two acts of racketeering. In addition to the racketeering acts that Defendant Austin himself is charged with committing, the United States intends to present evidence that Defendant Austin knew of other acts his various co-conspirators planned on committing. Therefore, the evidence the United States intends to present against Defendant Austin significantly overlaps with evidence the United States intends to present against his co-defendants. Nonetheless, the United States acknowledges that Defendant Austin's charged involvement in the Cisneros Organization was more limited than many of his co-defendants. The United States also acknowledges that if the Court required the United States to proceed separately against Defendant Austin, the United States could choose to forego presentation of some of the evidence tending to show the existence of the enterprise and the agreement Defendant Austin entered into with respect to crimes he knew the enterprise would commit. Because Defendant Austin has a previous felony drug conviction, because his latent fingerprints were found on equipment at two laboratories that produced, or were capable of producing, "A-level" amounts of methamphetamine, and because police actually caught Defendant Austin red-handed inside one of the laboratories, the United States is less concerned about presenting the full gamut of its RICO evidence against Defendant Austin. If Defendant Austin proceeds to trial, the United States would likely be able to obtain a conviction and mandatory twenty year sentence against him, even without presenting all of its RICO evidence. As a result, the United States' objection to a severance of Defendant Austin is less strenuous than with respect to any of his co-defendants. IV. Conclusion To prove the RICO conspiracy charges against Movants beyond a reasonable doubt, the United States must establish the existence of an enterprise as well as the existence of an agreement that at least one member of the enterprise would commit two racketeering acts. To 15

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prove these elements, the United States must present substantially the same evidence against Movants and non-movants, even though Movants are charged with numerically fewer crimes. Because evidence of crimes other members of the enterprise committed will be presented against Movants regardless of whether they are tried separately from non-movants, no spillover prejudice issue exists. Thus, in addition to the reasons to reject various defendants' spillover arguments that the United States set forth in previous briefs (See Dkt. 249 at 9-11; 824 at 7-12; Dkt. 856 at 11-13), this Court should reject Movants' spillover argument because, if tried separately, very little additional evidence would be presented at the non-movants' trial, leaving very little that could have possibly spilled over to Movants in a joint trial. In addition, strong reasons exist not to hold two trials and require the more than 225 United States' witnesses, many of whom live outside the state, to testify twice. This is especially true with respect to family members and confidential witnesses. The Moreno family would naturally prefer not to testify at all. They would prefer not to have to fly to Phoenix and publicly recount how two masked assassins invaded their home and murdered a husband and a son; a father and a brother; and an uncle and a cousin. Requiring them to needlessly relive this traumatic experience at multiple trials can, and should, be avoided. Holding one trial, rather than two, also makes it much easier to protect the confidential witnesses in this case. Once the identity and testimonial value of these witnesses are revealed in the first trial, their safety will be much more imperiled while they wait to testify in the second trial. Not only will the defendants in the second trial become aware of the existence of these witnesses, those defendants will have a powerful incentive to do everything in their power to prevent this testimony from recurring at the second trial. In addition to mitigating the risk presented to confidential witnesses, holding only one trial prevents those defendants to be tried second from gaining an unfair advantage by virtue of the preview of the United States' case that they will receive. Here, because the evidence the United States presents will be essentially the same in both trials, the unfair advantage the

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second group of defendants will gain is particularly strong. One trial would further reduce the risk of inconsistent jury verdicts. Finally, a significant savings of judicial resources would result from not having to twice call more than 225 witnesses and twice present virtually the same evidence. When the Court rejected the motion to sever that Movants, along with Defendant Llamas, filed, the Court already recognized this consideration, noting that while the requested severance would "do little if anything to foster judicial economy, it will produce costs, in terms of inconvenience, trauma, and possibly danger, for witnesses, including family members of the victims." (Dkt. 1030 at 14). Thus, for the same reasons this Court rejected the motion to sever filed by Movants plus Defendant Llamas, this Court should reject the present motion to sever. In the alternative, rather than severing the trial of all Movants from non-movants, judicial economy would be served, if at all, only be severing the trial of Defendants Austin and Reyes from that their codefendants. Respectfully submitted this _____ day of October 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Steven C. Yarbrough STEVEN C. YARBROUGH Special Assistant United States Attorney

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael Bernays, Esq. 111 W. Monroe St., Suite 1650 Phoenix, AZ 85003

CERTIFICATE OF SERVICE I hereby certify that on October 18, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John Sears, Esq. 107 N. Cortez St. Prescott, AZ 86301 Peter Schoenburg, Esq. 500 4th St., NW, Ste. 400 Albuquerque, NM 87102 Billy Blackburn, Esq. 1101 Lomas, N.W. Albuquerque, NM 87102-1952 Larry Hammond and Debra Hill, Esqs. 2929 N. Central, Ste. 2100 Phoenix, AZ 85012 Carmen Fischer, Esq. 45 W. Jefferson, Ste. 403 Phoenix, AZ 85003 James Park, Esq. 111 W. Monroe, Ste. 1500 Phoenix, AZ 85003 James Belanger, Esq. 40 N. Central Ave., Ste. 1900 Phoenix, AZ 85004 Greg Kuykendall, Esq. 145 S. 6th Ave. Tucson, AZ 85701 Kari Converse, Esq. 122 Tulane, SE Albuquerque, NM 87106 Dan Maynard, Esq. 1800 Great American Tower 3200 N. Central Ave. Phoenix, AZ 85012 Michael Terribile, Esq. 111 W. Monroe, Suite 1650 Phoenix, AZ 85003 Joseph St. Louis, Esq. 216 N. Main Ave. Tucson, AZ 85701-7202

Barbara Hull, Esq. 86 W. University Dr., Ste. 101A Mesa, AZ 85201-6666 Joe Romero, Jr., Esq. 1905 Lomas, NW Albuquerque, NM 87104-1207

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