In 1970, the US Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO) to prosecute organize crime figures who were not committing crimes themselves but were running and benefiting from criminal organizations.
NEW MEXICO RICO STATUTE
In 1996, the New Mexico legislature enacted its own RICO statute “to eliminate the infiltration and illegal acquisition of legitimate economic enterprise by racketeering practices and the use of legal and illegal enterprises to further criminal activities”. NM Stat § 30-42-2 (1996)
“Racketeering” is defined as any act that is chargeable or indictable under the laws of New Mexico and punishable by imprisonment for more than one year, involving any number of felony offenses. Those offense listed in the statute include: murder, robbery, kidnapping, forgery, larceny, fraud, embezzlement, fraudulent securities practices, loan sharking, embezzlement, receiving stolen property, bribery, gambling trafficking in controlled substances, arson and aggravated arson, promoting prostitution criminal solicitation, distribution of controlled substances or controlled substance unlawful taking of a vehicle or motor vehicle embezzlement of a vehicle or motor vehicle, fraudulently obtaining a vehicle or motor vehicle receiving or transferring stolen vehicles or motor vehicles. (NM Stat § 30-42-3 (1996 ) The criminal code provides for second and third decree felony penalties. (30-42-4. Prohibited activities; penalties.)
New Mexico’s criminal racketeering statute has a civil component to it as well. It provides:
“A. A person who sustains injury to his person, business or property by a pattern of racketeering activity may file an action in the district court for the recovery of three times the actual damages proved and the costs of the suit, including reasonable attorney’s fees.
B. The state may file an action on behalf of those persons injured or to prevent, restrain or remedy racketeering as defined by the Racketeering Act [30-42-1 NMSA 1978].
C. The district court has jurisdiction to prevent, restrain and remedy racketeering as defined in [ the statute] after making provision for the rights of all innocent persons affected by such violation and after hearing or trial, as appropriate, by issuing appropriate orders.
Prior to a determination of liability, such orders may include but are not limited to entering restraining orders or prohibitions or taking such other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to damages, forfeiture or other restraints pursuant to this section as it deems proper.
D. Following a determination of liability, such orders may include but are not limited to:
(1) ordering any person to divest himself of any interest, direct or indirect, in any enterprise;
(2) imposing reasonable restrictions on the future activities or investments of any person;
(3) ordering dissolution or reorganization of any enterprise;
(4) ordering the payment of three times the damages proved to those persons injured by racketeering; and
(5) ordering the payment of all costs and expenses of the prosecution and investigation of any offense included in the definition of racketeering incurred by the state to be paid to the general fund of New Mexico.” 30-42-6. Racketeering; civil remedies.
RICO CHARGES ANNOUNCED
Two and a half months after Bernalillo County District Attorney Raul Torrez took office, he announced and took credit for his office indicting 15 young people, ages 20 to 28, on gang related racketeering and other charges in the spring 2017. The RICO indictment was based upon an investigation of an alleged gang which APD said had started out tagging the area around West Central and escalated to committing violent crimes. District Attorney Raúl Torrez held a news conference, which is one of his favorite things to do, calling the defendants “members of one of Albuquerque’s more notorious street gangs.”
In the two and a half years since District Attorney Torrez filed the RICO indictment, 10 defendants have plead guilty or no contest. Two of those defendants still have cases pending and two are now dead. The listing of those who entered into plea agreements can be found in the postscript to this article.
AN INNOCENT MAN INDICTED
On Sunday, August 18, 2019 the Albuquerque Journal reported on its front page that one of the young men indicted was 20-year-old Adan Perez-Macias. It was reported he was not a member of the gang APD was investigating or any other gang. It turns out Adan Perez Marcus did not know and never met the others indicted. Perez Marcus was not even in New Mexico at the time the crime he was accused of was committed.
Adan Perez-Macias was reported as saying:
“Supposedly, I was in Tijeras with another group of people and we robbed an old person. … That’s what they had told me. I’ve never even been to Tijeras. … Some of the stuff [I was charged with] sounded outrageous.”
On the day authorities say he and two others burglarized a Tijeras home, Perez-Macias was working at a seaside restaurant in Naples, Florida. When his indictment was announced, Perez-Macias quit his restaurant job and used his savings to buy an emergency plane ticket back to Albuquerque to try and clear his name.
Perez-Macias was charged with aggravated burglary, conspiracy, receiving or transferring a stolen motor vehicle and several other crimes including racketeering after a homeowner in Tijeras found one of the other 2 defendants in the home. The other two defendants charged along with Peres-Macias were arrested in a stolen pickup that matched the description of a vehicle seen at the burglary.
The wrongful indictment of Perez-Macias can directly attribute to one of the accused burglars dropping a similar name to Perez-Macias’. Law enforcement and the District Attorney’s Office failed to contact Perez-Macias to try and determine if he was involved with the allege crimes.
The charges against Perez-Macias were dismissed 7 months after the indictment was filed. However, he suffered emotionally with the pending charges hanging over his head for 7 months. He still has a felony arrest record that will no doubt be revealed whenever a background check is done on him.
You can read the extended report here:
DA TORREZ LABELS INDICTMENT “UNFORTUNATE”
District Attorney Raul Torrez labeled the wrongful indictment of Perez-Macias as “unfortunate” and said it could have happened in any case by saying:
“Sometimes law enforcement gets bad information, and prosecutors rely on that information, and, then when they learn about new facts, whether it’s an alibi or being out of state, they take steps to correct it. … But I don’t think that including this one individual should undermine the general strategy or work that goes into RICO prosecutions.
If you do it in the context of a RICO prosecution, you’re able to actually tell the broader story and give the court and the jury a narrative that … [shows] this is a larger pattern of criminal conduct. … You can’t look at these individuals or their individual acts in isolation. You have to understand it as part of a pattern. We’re investigating the most violent groups in the city again right now and gathering evidence of criminal activity.
But we’re also analyzing, can we establish patterns of conduct, known associations and whether or not this is in fact a group that is acting in a concerted way. My sense is that both law enforcement and prosecution can learn from that and learn about how to more effectively use this in a way that doesn’t upend people’s lives and doesn’t cause harm … We can be smart and be effective as institutions. We make mistakes and we learn from these mistakes and improve.”
Torrez claimed the chances of mis identification are much smaller now that he has created a Crime Strategies Unit who review social media and forensic evidence and who work with APD and BCSO.
COMMENTARY AND ANALYSIS
This news story falls squarely under the category of “shit happens” in the Bernalillo County District Attorney’s Office, even destroying an innocent man’s reputation and life. To District Attorney Raul Torrez it was merely “unfortunate” that an innocent person was indicted on numerous charges. Torrez said it could have happened in any case. That is simply not true and Torrez knows it.
RICO charges are based upon holding those responsible for crimes and a continuing course of conduct. Racketeering charges are very easy to secure indictment’s on based on one guilty person accusing another for being involved with the crime. The risk of charging an innocent person, such as Adan Perez-Macias, is the problem.
The fact that New Mexico’s RICO statute has a civil lawsuit component that allows the District Attorney or a private citizens “to prevent, restrain and remedy racketeering” and file a civil action in the district court for “the recovery of three times the actual damages proved and the costs of the suit, including reasonable attorney’s fees” suggests that such RICO actions were intended for more sophisticated crimes than those engaged in by “members of one of Albuquerque’s more notorious street gangs” who started out as a west side “graffiti tagging team” as described by Torrez. Torrez should have initiated a civil action against the tagging team of 21+ year old if he wanted to pursue a RICO charge as well as indicting them separately on the underlying criminal charges.
PROBLEMS WITH RICO CRIMINAL CHARGES
Some legal scholars call RICO charges as “guilt by association.” A RICO charge is not like most cases and are more complicated. In New Mexico, RICO charges are very few and far between. What has been learned by prosecutors is that RICO indictments can be easily obtained but usually successful convictions in state court are difficult. Further, RICO actions are considered far more appropriate in white collar crime cases such as larceny, fraud, embezzlement, fraudulent securities practices, loan sharking, embezzlement, receiving stolen property as opposed to crimes of a “violent street gang” that started out as west side tagging team.
Under most cases charged by indictment for violent crimes or felonies, there is evidence placing a charged defendant at the scene of the crime. It’s unlikely that any grand jury would indict without such evidence. With a RICO charge, if an innocent person is named or identified in a case by other defendants as being involved with the crime committed, even though that person was not there, they can be indicted or charged with RICO violations.
TORREZ BLAMES COURT FOR HIGH CRIME RATE
When Torrez ran for Bernalillo County District Attorney, he said our criminal justice system was broken, it was in dire need of change and he was the guy to fix it. Within six months after being elected, Torrez had his office prepare a report on the statistics regarding the number of felony cases that were being dismissed by the District Court. Torrez accused the District Court for being responsible for the rise in Albuquerque crime rates and releasing violent offenders pending trial. District Attorney Raul Torrez also accused defense attorneys of “gaming the system” in order to get cases dismissed against their clients. A subsequent report prepared by the District Court revealed that it was actually the District Attorney’s office that was in fact voluntarily dismissing far more felony cases for various reasons, including his office not being prepared for trial, the office’s failure to meet discovery deadlines, and prosecutors failure to turn evidence over to defense counsel as mandated by law and discovery court orders.
The case dismissed against Adan Perez-Macias is now one of the thousands of cases dismissed by the DA’s office with DA Torrez being the one who is “gaming the system”.
TORREZ RESISTS PRELIMINARY HEARINGS
Since mid-2015, and before Torrez was elected, the 2nd Judicial District Court began shifting from grand jury use to implementing “preliminary hearing” schedule. Raul Torrez was sworn in as District Attorney on January 1, 2017 and from day one Torrez has resisted the change over from grand jury presentation to a preliminary hearing process. Grand jury indictments are far easier to secure because of the exclusive control prosecutors have over the confidential hearings. Preliminary hearing on the other hand are controlled by the court, held in public, with the defendant present.
In September, 2018 the 2nd Judicial District Court notified District Attorney Raul Torrez that it would be drastically reducing the amount of time for grand jury and shifting to preliminary hearings. Torrez wrote the New Mexico Supreme Court demanding that they intervene and order the District Court to offer more grand jury time. The District Court responded that preliminary hearings were necessary and would require better screening of cases by the District Attorney. District Court presented data to the Supreme Court that showed how overcharging and a failure to screen cases by the District Attorney’s Office was contributing to a combined 65% mistrial, acquittal and dismissal rate at trial. The Supreme Court declined to intervene.
Had a preliminary hearing been prepared for to charge Adan Perez-Macias, it highly likely the DA’s office would have discovered that they would be charging an innocent man.
In May, 2019, Bernalillo County District Attorney Raúl Torrez proposed a new constitutional amendment that would create a “presumption” that a defendant is a threat to the public when charged with a violent crime and that they should be jailed until pending trial without bond or conditions of release. The presumption would shift the burden of proving dangerousness from the prosecution and require defendants accused of certain crimes to show and convince a judge that they should be released on bond or conditions of release pending their trial on the charges.
According to Torrez, the cases where a defendant would be required to show they do not pose a threat to public and should be released pending their trial would include “the most violent and serious cases” such as murder, first-degree sexual assault, human trafficking, first-degree robbery, crimes involving a firearm and defendants who are on supervision or parole for another felony. Under the constitutional amendment Torrez wants approved, given the charges Adan Perez Marcus was faced with, he would in all likely have sat in jail for 7 months until the District Attorney’s Office realized he had been wrongfully charged.
When discussing the wrongful indictment of Perez Marcus, Torrez said “We can be smart and be effective as institutions. We make mistakes and we learn from these mistakes and improve.” Torrez had no apology, no expression of empathy and no offer of help to 20-year-old Adan Perez Marcus. When DA Raul Torrez says it’s all about justice for victims, he apparently does not believe innocent people are entitled to justice nor any kind of an apology for being wrongfully accused.
Any apology from Raul Torrez in this case is simply not enough. The mistake made in indicting and innocent man could in all likely been avoided with a little more diligence and no rush to indict. At a bare minimum, DA Torrez needs to instruct his office to seek to expunge the arrest record of Adan Perez Marcus. Further he should seek the justice he believes in and contact the New Mexico Risk Management and ask the Perez Marcus be compensated for the pain and suffering associated with the incompetence of his office indicting an innocent man.
Torrez has now announced that he wants to do more RICO actions thinking it’s an effective way to secure easy indictments and secure plea agreements without trials. Before District Attorney Raul Torrez does that, he should go back and review the criminal racketeering statute and determine if such and action is really appropriate. Otherwise Torrez risks the accusation that they he is acting in bad faith, being overzealous by overcharging a case and “gaming the system” to get his conviction rates up.
The general public and voters can only hope DA Raul Torrez does not continue with a pattern of indicting innocent people and then holding a press conference. He should also learn far more from all the mistakes he has made with his relentless attacks on the courts and the criminal justice system.
According to the New Mexico online court records and the District Attorney’s Office, the cases against the defendants that Adan Perez-Macias were charge with RICO charges have been disposed of as follows:
Daniel Lee Sandoval, 22, pleaded guilty to 36 charges, including racketeering, second-degree murder, and extreme cruelty to animals. He was sentenced to 30 years in prison.
Reymundo Tilo Lucero, 24, pleaded no contest to 16 charges including aggravated burglary, conspiracy and several counts of larceny of a firearm. He was sentenced to 12 years in prison.
Dominic Jiminez, 21, pleaded guilty to 13 charges, including racketeering, possession of methamphetamine and aggravated assault with a deadly weapon. He was sentenced to nine years in prison
Carlos Zuniga, 36, pleaded guilty to robbery, breaking and entering and conspiracy. He was sentenced to four years in prison.
Kevin Michael Golladay, 24, pleaded guilty to conspiracy, contributing to the delinquency of a minor and tampering with evidence. He was sentenced to four years in prison.
Paul Max Martinez, 22, pleaded guilty to 29 charges, including racketeering, aggravated burglary, larceny of a firearm and conspiracy. He was sentenced to 20 years in prison.
Anthony Ray Serna, 24, pleaded no contest to conspiracy, receiving stolen property and possession of a controlled substance. He was sentenced to four years in prison.
Eligius Joshua Montano, 22, pleaded guilty to 13 charges, including aggravated fleeing a law enforcement officer, larceny of a firearm and receiving or transferring a stolen motor vehicle. He was sentenced to seven years in prison.
Jamil William Lewis, 21, pleaded to a nine year jurisdiction and is in the young adult court program pending sentencing.
Esteban Garcia, 21, is scheduled to go to trial at the end of September.
Renee Ortega, 27, still has a trial pending. She has a bench warrant filed for failing to appear at a hearing.
Santiago Benavidez, 24, case against him was dismissed due to witness unavailability, but he pleaded guilty in another case.
Aaron Michael Sanchez, 27, is deceased.
Duwin Raul Perez-Cordova, 28, is deceased.