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Anti-gang tactic sweeps up wrong man

Copyright © 2019 Albuquerque Journal

When 15 young people were indicted on a swath of racketeering and other charges in spring 2017, District Attorney Raúl Torrez held a news conference calling the defendants “members of one of Albuquerque’s more notorious street gangs.”

The indictment – two and a half months after Torrez took office – was the culmination of months of investigations and media reports about the group, which police said had started out tagging the area around West Central and escalated to committing violent crimes.

Adan Perez-Macias, now 22, was wrongfully swept up in a wide-ranging indictment of several members of a local street gang in 2017. (Roberto E. Rosales/Albuquerque Journal)

Adan Perez-Macias, now 22, was wrongfully swept up in a wide-ranging indictment of several members of a local street gang in 2017. (Roberto E. Rosales/Albuquerque Journal)

However, one of the young men indicted – 20-year-old Adan Perez-Macias – was not a member of that gang or any other gang.

He had never met the others and was not even in the state at the time the crime he was accused of was committed.

“Some of the stuff sounded outrageous,” Perez-Macias told the Journal in an interview this summer. “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.”

In fact, on the day authorities say he and two others burglarized a Tijeras home, Perez-Macias was working at a seaside restaurant in Naples, Florida.

The charges against him were dismissed about seven months after the first documents in the case were filed, but the ordeal upended his life.

The wrongful indictment – spawned when one of the accused burglars dropped a name similar to Perez-Macias’ – raises questions as Torrez’s office prepares to employ the same strategy on other gangs.

After his name was broadcast in March 2017, Perez-Macias quit his restaurant job and used his savings to buy an emergency plane ticket home. He now lives with his mother and father in their mobile home in a Southwest Albuquerque neighborhood.

He still has the felony charge on his record.

RICO use rare in N.M.

The federal RICO (Racketeer Influenced and Corrupt Organizations) act was passed in 1970 as a way to prosecute mob bosses who were not committing crimes themselves but were running and benefiting from criminal organizations.

“They haven’t all committed the serious cases, but all are somewhat responsible for that because its a continuing course of conduct,” said Joshua Kastenberg, a professor at the University of New Mexico school of law and a former prosecutor and judge. “… What I mean by that is, RICO was designed to make organized crime families and syndicates think twice before committing a crime or being a member.”

The use of RICO in New Mexico is extremely rare, and no attorneys interviewed could remember a prior case in state court.

In the two and a half years since District Attorney Torrez filed the RICO indictment, 10 defendants have pleaded guilty or no contest.

Two still have cases pending and two have died – including Duwin Perez-Cordova, who escaped from jail last year and fled to northern Mexico where he was shot and killed.

In an interview last month, Torrez said his office is gearing up for another round of RICO indictments against street gangs.

“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,” Torrez said. “You can’t look at these individuals or their individual acts in isolation. You have to understand it as part of a pattern.”

He said the wrongful indictment of Perez-Macias, while unfortunate, could have happened in any case.

“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,” he said. “But I don’t think that including this one individual should undermine the general strategy or work that goes into RICO prosecutions.”

However, Kastenberg said that since RICO is “a step toward guilt by association” it’s easier for prosecutors to get an indictment in a case. Therefore, he said, RICO prosecutions can end up ensnaring the wrong person.

“If they don’t have evidence placing the innocent party who has been charged at the scene of the crime, it’s unlikely to get an indictment,” Kastenberg said. “But if the innocent party has been labeled as guilty by one of the participants in the crime – saying even if he wasn’t there he was a part of this – then a grand jury or indictment on information is more likely to succeed.”

‘I was shaking’

When Perez-Macias flew back from Florida for his court appearance, he stayed at his parents’ house and didn’t tell any of his old friends he was home or make arrangements to go out.

The morning of his arraignment, he picked out his clothes with care.

“I remember I went and I was shaking,” he said. “I was like, what’s going to happen. Are they going to arrest me? I went dressed almost like in a suit, just without the tie, and I saw everyone else walking in wearing regular clothes. Oh, I look like a fool out here.”

He said he didn’t recognize any of his co-defendants.

Jason Wheeless, who was appointed Perez-Macias’ public defender, said he remembers watching his client enter with the rest of the crew.

“I remember the judge called us all to the jury room and said we’re going to go through arraignments now, or maybe split into two groups,” Wheeless told the Journal. “Adan was there, and I remember he was a young guy, really baby faced. He was well-dressed, soft-spoken, polite.”

The defendants, ages 19 to 33, were facing a litany of charges including racketeering, larceny, aggravated burglary, stealing a motor vehicle, extreme cruelty to animals, and contributing to the delinquency of a minor.

Some were also implicated in the death of a local deacon who was run over as he tried to stop the teens from stealing his van.

Perez-Macias, Esteban Garcia and Eligius Montano were charged with aggravated burglary, conspiracy, receiving or transferring a stolen motor vehicle and several other crimes after a homeowner in Tijeras found Garcia in his home.

Garcia told deputies he was with “Adan Perez” and Montano.

A short time later, two other young men, Anthony Ray Serna and Paul Martinez, were arrested in a stolen pickup that matched the description of a vehicle seen at the burglary.

Jail was ‘pretty bad’

The Bernalillo County Sheriff’s Office declined to arrange an interview with detectives, but they did provide a 70-plus-page report detailing the investigation.

Garcia’s statement was the only thing tying Perez-Macias to the case.

During a hospital-bed interview, he said he was with “Adan Perez” and positively identified photos of Perez-Macias. He also identified his Facebook page, according to the incident reports.

The first time Perez-Macias heard of the case was in mid-December, when his parents called him to say detectives had stopped by their house. Neither of his parents spoke fluent English, and Perez-Macias said he assumed it would all blow over.

That changed when he heard his name on the news.

His mother began considering selling the family’s trailer to pay for a lawyer or sending him to Mexico.

Perez-Macias began to worry he might lose custody of his then-2-year-old son or not be able to get a job. He was told he could get 23 years in prison.

So Perez-Macias told his boss in Florida he had to go, bought a plane ticket and flew back to Albuquerque to try to clear his name.

He attended the arraignment, pleaded not guilty, and a couple of days later his girlfriend drove him to the county jail, where he was booked for about 12 hours, then released.

“It was pretty bad in there,” Perez-Macias said. “I saw all kinds of inmates, and they were yelling as soon as I went in. I’m a small person, so I’m not able to put up a chance against any of them. I just sat there all day, just thinking, ‘When will I get out?’ ”

Shortly after that, he was able to show his restaurant pay stubs to Wheeless, who showed them to the DA’s Office.

Prosecutors dropped the charges in mid-June, more than half a year after a warrant was first issued for his arrest. They said the real “Adan Perez” has not been found.

These days, Perez-Macias is an assistant manager at Burger King. His son is now 5, and he has a young daughter as well.

He spends his time modifying cars with skills he learned on YouTube, and his only other mention in New Mexico court records is related to a minor car crash.

‘We make mistakes’

District Attorney Torrez said that, in the wake of the RICO indictment, the street gang broke up, splintering into factions.

It’s a prosecution strategy he is ready to try again.

“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,” Torrez said.

He said his office has since created a Crime Strategies Unit of investigators who comb through social media and digital forensic evidence from cellphones and computers to aid prosecutions.

While prosecutors relied on BCSO and Albuquerque Police Department in the 2017 indictment, now the CSU will work on the case as well, and Torrez said the chances of misidentification are much smaller.

“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,” Torrez said. “We can be smart and be effective as institutions. We make mistakes and we learn from these mistakes and improve.”

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