Troy Livingston appeals 20-year sentence for beating girlfriend to death

• Judge William Johnson sentenced Troy Livingston to 20 years after a plea to second-degree murder
• Livingston is appealing his sentence because the federal sentencing guidelines put his max at 17.5 years
• The judge noted he committed prior acts of domestic violence, prosecuted tribally
• Prosecutor David Cowen and defense attorney Theresa Duncan appear to have improperly sealed nearly all sentencing documents

ALBUQUERQUE, N.M. — A Breadsprings man who pleaded guilty in 2020 to violently beating his girlfriend to death with a flashlight, his feet and fists, while their 2 1/2-year-old was in the house, is appealing his 20-year sentence for second-degree murder.

Mug shot of Troy Livingston
Troy Livingston

Troy Livingston‘s attorney, Theresa Duncan, filed the appeal on Sept. 20, 2021, 12 days after Judge William Johnson sentenced Livingston to 20 years in prison for the violent beating death.

Livingston’s sentencing had been put off repeatedly, without a given reason. Although Magistrate Judge Laura Fashing took Livingston’s guilty plea on Aug. 4, 2020, she deferred final acceptance until the sentencing hearing in front of Johnson.

According to the plea, Livingston, 21, admitted to beating Lamebear, 19, with his hands, feet and a metal flashlight causing severe head, face and body injuries.

No docketing statement has been filed.

Grounds for appeal

While Quintana pleaded guilty to second-degree murder on Aug. 4, 2020, Johnson still had to accept it, which he did at the end of the Sept. 8, 2021 hearing.

According to Quintana’s plea deal, he waived some of his appeal rights, but he is still explicitly allowed to appeal the judge’s sentence, if and when it went beyond the sentencing guidelines.

Chief Judge William Johnson found Quintana’s offense level was 35, and a criminal history of level of I, putting his sentence range at 14 to 17.5 years. However, Johnson sentenced Quintana to 20 years, 2.5 years above the sentencing guideline.

 

Troy Livingston’s sentencing

According to detailed minutes from Livingston’s sentencing hearing, prosecutor David Cowen presented 30 exhibits, had three family members to testify and called FBI Agent David Loos to testify.

Among the exhibits were the 911 audio call, a police body cam, photos of the rooms and of the bloody flashlight, the autopsy report, photos of the victim, reports detailing Livingston damaging Lamebear’s car, prosecuted tribally, as well as photos of the damage he caused, and an interview with the victim, although it is not clear if it is from the night she died or from prior, according to the minutes.

Cowen asked for an upward departure, of 27 to nearly 34 years in prison, while Duncan wanted a sentence of 10 to 12 years.

Cowen said Livingston’s behavior was an example of “extreme conduct” but more of his position is not outlined in the minutes and Cowen appears to have filed his sentencing memorandum under seal without a judge’s required permission, against the federal court’s own rules, which appear to be rarely, if ever, enforced, according to an NM InDepth investigation.

Like Cowen’s reasoning, Duncan’s reasoning is not in the the minutes and her sentencing memorandum was filed under seal, without a judge’s permission, a violation of the court rules.

The facts of the case

Troy Livingston

On April 6, 2019, Troy Livingston’s mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and his girlfriend, Tyler Lamebear, came home to her Rodeo Road home in Breadsprings, FBI Agent Monty Waldron wrote in a statement of probable cause for Livingston’s arrest.

At 3 a.m., Livingston and Lamebear were arguing and Gertrude Livingston could “sense tension” between them. She then heard crying, which she believed was from her son hitting Lamebear. He ordered his mother out of the bedroom and she complied, Waldron wrote.

When she heard more crying, she went into the bedroom and saw her son allegedly stomping his girlfriend with his foot and described the girlfriend as being in a ball, her arms and hands around her head, he wrote.

“Again LIVINGSTON told G.L. to get out, so G.L. left the house,” Waldron wrote. “LIVINGSTON locked the door behind G.L. From outside, G.L. could hear screaming, thumping and banging.”

When it was quiet, the mother went back into the house and heard wheezing from inside the bedroom door. At some point, she called the Navajo Police Department to report a violent “dispute,”  Waldron wrote.

Officers found Lamebear lying on the floor, covered in blood, badly beaten. They asked her who beat her and she responded, “Troy did this to me.” Livingston was lying on the bed next to his 2-1/2-year-old toddler, who was not harmed, he wrote.

Medics transported Lamebear to the Gallup Indian Medical Center. She either died at the hospital or before she arrived, he wrote.

Livingston told Loos and Navajo Criminal Investigator Ben Yazzie, during an interrogation, that he “took it too far, way too far.” He was angry Lamebear admitted to having sex with his friend. He also admitted to using a flashlight to beat her, Waldron wrote.

According to the autopsy report by Lori Proe, Lamebear had multiple “bruises, scrapes and skin tears of the face and scalp” and many of them had a distinctive shape, like that of a flashlight. Her nose was broken and there was bleeding in the deep tissues of her scalp and bleeding over the surface of her brain, which was swollen, “a change that can occur when the organ is damaged and/or deprived of oxygen.”

Multiple ribs were broken and she was bleeding in her chest and what would be a bite mark on her left shoulder, Proe wrote.

According to a deputy field investigation by Harolynn Yazzie, she was covered in dried blood and her clothing was soaked in blood.

For more details on the incident, see the case write-up

Documents hidden from public against court rules

Many of the most important documents in the case appear to have been filed improperly under seal, either by Cowen or Duncan, according to an unredacted docket filed in the case that shows all the entries missing from the public docket.

Those missing entries include a motion to seal something, under the federal rules for grand jury secrecy, but what specifically is unknown, as well as an order granting the sealing.

A litany of other documents were sealed, and it appears all without a judge’s order, per local sealing rules. Those documents include:

  • Cowen’s sentencing memorandum
  • Objections to the presentence report, including Livingston’s statement to law enforcement, Gertrude Livingston’s statement, 911 call logs, and artwork by Livingston. Also included, but which is required to be sealed, is grand jury transcripts.
  • Livingston’s own sentencing memorandum, where he presumably asks for a large reduction in sentence
  • Cowen’s response to Livingston’s objections to the presentence investigation report
  • Notice of exhibits filed by Cowen relating to his sentencing memo
  • Livingston’s response to Cowen’s sentencing memo, including pages from the public Office of the Medical Investigator report and booking information
  • Letters from Livingston’s family

In the New Mexico local rules for the federal court, an attorney must file a request to deal a document and a judge must grant that request. In the long list of sealed documents, only a sealed motion relating to grand jury material was filed. However, it’s not clear why Johnson granted the motion, what it covered, or why, because the motion, and the order, were both sealed.

The order’s docket is only visible because it was added as an exhibit and merely requests an order “pursuant to Federal Rules of Criminal Procedure 6(e),” which referrers to the rules around grand jury secrecy. 

A 2010 guide put out by the Federal Judicial Center lays out a seven-point “procedural checklist” for documents to be sealed in federal court, including that motions to seal should be docketed publicly, as should the order to seal.

Johnson, overseeing the case and who signed off on the secret sealing order, is the court’s chief justice. Johnson was recently exposed, by Phaedra Haywood in the Santa Fe New Mexican, as being in photographs with a confederate flag during his time at the Virginia Military Institute in the late 1970s. He claimed in a written statement to the New Mexican of having no memory of posing with the flag, after recanting on an agreement to be interviewed.

NM Homicide has repeatedly reported on improperly sealed documents in the federal courts, as they appear to be a reoccurring issue.

Do you have information about this case? NM Homicide needs your assistance. Please fill out this form or contact us.

See the case documents on Google Drive or Document Cloud. For more details on the incident, see the case write-up or past coverage of this case.

Continue reading “Troy Livingston appeals 20-year sentence for beating girlfriend to death”

Troy Livingston sentencing delayed to September for beating death of girlfriend

• Judge William Johnson moved the sentencing hearing for Troy Livingston twice, once to August, and now September, without giving a reason
• Livingston pleaded guilty to second-degree murder for beating to death Tyler Lamebear, his girlfriend

See the case write-up or more stories about the case

ALBUQUERQUE, N.M. — The families of the 19-year-old woman whom Troy Livingston beat to death will have to wait until Sept. 9, 2021 at the earliest to see him sentenced for her brutal death.

Troy Livingston

Livingston, 20, of Breadsprings, pleaded guilty on Aug. 4, 2020, to a criminal information charging him with second-degree murder for Lamebear’s beating death on April 6, 2019. He faces a maximum sentence of life in prison.

Livingston’s sentencing was initially set for Nov. 12, 2020, but was then moved repeatedly.  His defense attorney, Theresa Duncan, last asked on April 26, 2021, that his sentencing hearing, set for May 17, 2021 at the time, be moved for three weeks because she was unable to “collect substantial information” relevant to sentencing, she could call witnesses and she wasn’t able to get any of that done during the pandemic.

Complicating matters was that most of the witnesses, like Livingston, live on the Navajo Nation, particularly hard hit by the pandemic.

Judge William Johnson granted Duncan’s request, moving Livingston’s sentencing to July 19. On June 17, he moved the sentencing hearing again, this time to Aug. 23, including the deadlines. He gave no reasoning, according to the docket.

Johnson then moved the sentencing hearing again on July 28, to Sept. 8. Again, he gave no reason. However, in the case of Allister Quintana where he is also the sentencing judge, he wrote on the docket he has an “extended unavailability” as the reason to push out Quintana’s sentencing hearing to September.

According to the plea deal signed by prosecutor David Cowen, Livingston will be entitled to a two-level reduction in the federal sentencing guidelines, although where that puts his sentence is unknown pending the outcome of a pre-sentence report.

According to the plea, Livingston admitted to beating Lamebear with his hands, feet and a metal flashlight causing severe head, face and body injuries.

Although Magistrate Judge Laura Fashing took the plea, she deferred final acceptance until the sentencing hearing in front of Johnson.

For more details on the incident, see the case write-up or see past coverage of this case

Do you have information about this case? NM Homicide needs your assistance. Please fill out this form or contact us.

Continue reading “Troy Livingston sentencing delayed to September for beating death of girlfriend”

Tavor Tom pleads to 2nd-degree murder for killing of aunt

Tavor Tom pleaded guilty to second-degree murder
• He faces a maximum sentence of life for killing his aunt
Federal sentencing guidelines put his sentence at 16 to 20 years

See the case write-up or read previous stories on the case

SHIPROCK, N.M. —  Tavor Tom could receive a sentence of up to life in a federal prison after he pleaded guilty, Nov. 24, 2020, to second-degree murder for stabbing his aunt to death in 2019.

Tom, 19, of Shiprock, pleaded guilty in front of federal Magistrate Judge Kirtan Khalsa during a virtual hearing that lasted just over 30 minutes. Khalsa deferred final acceptance of the plea deal until sentencing by a district court judge, who has not been assigned yet.

Shiprock. Photo by Joseph Novak/Flickr

Tom will remain in jail pending his sentencing hearing.

A federal grand jury indicted him on July 9, 2019, on a charge of second-degree murder. He stabbed his aunt to death on July 1, 2019.

According to the plea deal proffered by federal prosecutor Joseph Spindle, there is no agreement as to the sentence.

Prosecutors will agree that Tom accepted responsibility for his conduct and grant that, under the sentencing guidelines, he is entitled to a reduction of two levels from the base offense. Spindle and Tom’s defense attorney, James Loonam, can argue whatever they want when it comes to the sentence.

In the plea agreement, Tom wrote that he stabbed his aunt repeatedly with a knife, “intentionally and without justification.”

When interrogated by FBI agents, he said he stabbed her repeatedly and slit her throat, according to court documents.

A records request for the autopsy report is pending with the Office of the Medical Investigator.

Sentencing guidelines

Second-degree murder carries a base offense level, per the federal sentencing guidelines for second-degree murder, is 38. The plea deal provides Tom with a two-level reduction for pleading guilty, putting the base level at 36.

According to the federal sentencing table, with little or no criminal history, that puts Tom’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the level without the consideration of his guilty plea, the range increases to 20 to 24 years.

Based on a search of federal and state court records, Tom does not appear to have any prior state or federal arrests. His tribal criminal records are unknown.

His final sentence will be up to the sentencing judge. No sentencing date has been set.

Federal sentencing guidelines table, levels 33 to 43.
Federal sentencing guidelines table, levels 33 to 43.

The crime

At 10 a.m., July 2, 2019, the victim was found dead in her house by her father. Sometime during that same morning, Tavor Tom was found in the victim’s Jeep Cherokee, after he crashed into a fence in front of a church in Nenahnezad. Navajo Nation police officers found a bloody knife in the car, FBI Agent Cary Cahoon wrote in an affidavit for an arrest warrant.

During an interrogation, Tom told FBI agents he killed his maternal aunt with a folding knife he took from his father’s vehicle. He intended to go to her house to steal her car so he could drive it to Farmington to steal Mucinex. After he stole it from the store, he drove on the back roads toward Shiprock and he crashed the vehicle into the fence. He was found in it the next morning, Cahoon wrote.

For more details on the crash, see the case write-up.

Continue reading “Tavor Tom pleads to 2nd-degree murder for killing of aunt”

Sentencing set for Breadsprings man who beat girlfriend to death

Troy Livingston pleaded guilty in August to second-degree murder
• He beat to death Tyler Lamebear, his girlfriend

Update: Sentencing has been continued to Sept. 9, 2021.

See the case write-up or more stories about the case

ALBUQUERQUE, N.M. — Troy Livingston is set to be sentenced on Nov. 12, 2020, after he pleaded guilty in August to second-degree murder for beating his 19-year-old girlfriend to death.

A notice on the docket states the sentencing will be at 9:30 a.m. in the Cimarron courtroom in front of District Judge William Johnson.

The docket and notice do not state if the hearing will be in person, virtual, a combination of the two or if that has not been decided yet.

Livingston, 20, of Breadsprings, pleaded guilty on Aug. 4, 2020, to a criminal information charging him with second-degree murder for Tyler Lamebear’s beating death on April 6, 2019. Livingston is an enrolled member of the Navajo Nation. Second-degree murder carries a maximum sentence of life.

According to the plea deal signed by prosecutor David Cowen, Livingston will be entitled to a two-level reduction in the federal sentencing guidelines, although where that puts his sentence is unknown pending the outcome of a pre-sentence report.

According to the plea, Livingston admitted to beating Lamebear with his hands, feet and a metal flashlight causing severe head, face and body injuries.

Although Magistrate Judge Laura Fashing took the plea, she deferred final acceptance until the sentencing hearing in front of Johnson.

It appears from the docket that the pre-sentence report may have been filed because entry 50 from the docket is missing, pre-sentence reports are not public and a sentencing date has been set.

What federal probation officers think his sentencing range should be has not been entered into the court docket yet. It is usually revealed either through a prosecution or defense sentencing memorandum.

A federal grand jury previously indicted Livingston on a charge of first-degree murder on Jan. 29, 2020.

Sentencing guidelines

The base offense level, per the sentencing guidelines for second-degree murder, is 38. The plea deal provides Livingston with a two-level reduction for pleading guilty, putting the base level at 36.

According to the federal sentencing table, with little or no criminal history, that puts Livingston’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the range increases to 20 to 24 years.

According to New Mexico and federal court records, Livingston has one past criminal case, for intoxicated driving and child endangerment from March 2019. Prosecutors dismissed that the case at the magistrate level, without prejudice, on May 8, 2019 in a form dismissal and wrote that Livingston was in federal custody for “an alleged capital offense.” Past arrests or convictions in tribal court are unknown. His addresses are listed as Church Rock and Vanderwagen in state court documents.

Federal sentencing guidelines table, levels 33 to 43.
Federal sentencing guidelines table, levels 33 to 43. Sentence ranges are in months. Second-degree murder has a base level of 38 (sentence range of 20 to 24 years) and the plea deal means a two-level reduction, to 36, creating a sentence range of 16 to 20 years.

 

The killing

On April 6, 2019, Troy Livingston’s mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and his girlfriend, Tyler Lamebear, came home to her Rodeo Road home in Breadsprings, FBI Agent Monty Waldron wrote in a statement of probable cause for Livingston’s arrest.

At 3 a.m., Livingston and Lamebear were arguing and Gertrude Livingston could “sense tension” between them. She then heard crying, which she believed was from her son hitting Lamebear. He ordered his mother out of the bedroom and she complied, Waldron wrote.

When she heard more crying, she went into the bedroom and saw her son allegedly stomping his girlfriend with his foot and described the girlfriend as being in a ball, her arms and hands around her head, he wrote.

“Again LIVINGSTON told G.L. to get out, so G.L. left the house,” Waldron wrote. “LIVINGSTON locked the door behind G.L. From outside, G.L. could hear screaming, thumping and banging.”

When it was quiet, the mother went back into the house and heard wheezing from inside the bedroom door. At some point, she called the Navajo Police Department to report a violent “dispute,”  Waldron wrote.

Officers found Lamebear lying on the floor, covered in blood, badly beaten. They asked her who beat her and she responded, “Troy did this to me.” Livingston was lying on the bed next to his 2-1/2-year-old toddler, who was not harmed, he wrote.

Medics transported Lamebear to the Gallup Indian Medical Center. She either died at the hospital or before she arrived, he wrote.

Livingston told FBI Agent David Loos and Navajo Criminal Investigator Ben Yazzie, during an interrogation, that he “took it too far, way too far.” He was angry Lamebear admitted to having sex with his friend. He also admitted to using a flashlight to beat her, Waldron wrote.

According to the autopsy report by Lori Proe, Lamebear had multiple “bruises, scrapes and skin tears of the face and scalp” and many of them had a distinctive shape, like that of a flashlight. Her nose was broken and there was bleeding in the deep tissues of her scalp and bleeding over the surface of her brain, which was swollen, “a change that can occur when the organ is damaged and/or deprived of oxygen.”

Multiple ribs were broken and she was bleeding in her chest and what would be a bite mark on her left shoulder, Proe wrote.

According to a deputy field investigation by Harolynn Yazzie, she was covered in dried blood and her clothing was soaked in blood.

For more details on the incident, see the case write-up

Do you have information about this case? NM Homicide needs your assistance. Please fill out this form or contact us.

Continue reading “Sentencing set for Breadsprings man who beat girlfriend to death”

Troy Livingston: Tyler Lamebear — 4-6-2019

Summary

On April 6, 2019, Troy Livingston, 18 at the time, beat his girlfriend, Tyler Lamebear, to death with his fists, feet and a flashlight after she said she had slept with one of his friends, according to court documents.

On Jan. 29, 2020, a federal grand jury indicted Livingston on a charge of first-degree murder for Lamebear’s death.

On Aug. 4, 2020, he pleaded guilty to a criminal information charging him with second-degree murder.

On Sept. 8, 2021, Chief District Judge William Johnson sentenced Livingston to 20 years in prison. Just 12 days later, his attorney, Theresa Duncan, appealed his sentence because it was above the federal guideline range of 17.5 years. His appeal is pending.

The incident

On April 6, 2019, Troy Livingston’s mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and his girlfriend, Tyler Lamebear, came home to her Rodeo Road home in Breadsprings, FBI Agent Monty Waldron wrote in a statement of probable cause for Livingston’s arrest.

At 3 a.m., Livingston and his girlfriend, Lamebear, were arguing and Gertrude Livingston could “sense tension” between them, he wrote.

Lamebear is identified as T.L. or “Jane Doe” in charging documents.

Troy Livingston

“G.L. heard crying from the bedroom and went in to see LIVINGSTON on top of Jane Doe with his fist raised,” Waldron wrote. “G.L. believes Jane Doe had already been hit because she was crying. Livingston told G.L. to get out of the bedroom which she did.”

When she heard more crying, she went into the bedroom and saw her son allegedly stomping his girlfriend with his foot and described the girlfriend as being in a ball, her arms and hands around her head, he wrote.

“Again LIVINGSTON told G.L. to get out, so G.L. left the house,” Waldron wrote. “LIVINGSTON locked the door behind G.L. From outside, G.L. could hear screaming, thumping and banging.”

When it was quiet, the mother went back into the house. She heard wheezing from inside the bedroom door, but did not know who was wheezing, he wrote.

At some point, she called the Navajo Police Department to report a violent “dispute” between Lamebear and her son, he wrote.

About 30 minutes after she went back into the house, Navajo police officers arrived and knocked on the door. When no one answered, they looked through the windows and saw blood on the floor. The mother then opened the door. Officers could see “lots of blood on the floor between the bedroom and the bathroom,” Waldron wrote.

Officers found the girlfriend laying on the floor, covered in blood, badly beaten. They asked her who beat her and she responded, “Troy did this to me.” Livingston was lying on the bed next to this 2-1/2-year-old toddler, who was not harmed, he wrote.

Medics transported the girlfriend to the Gallup Indian Medical Center. She either died at the hospital or before she arrived, he wrote.

FBI Agent David Loos and Navajo Criminal Investigator Ben Yazzie interrogated Livingston.

“I just got mad and took it too far, way too far,” Livingston said, according to Waldron’s statement of probable cause.

Livingston also allegedly said “I still can’t believe it, I killed her,” he wrote.

“LIVINGSTON stated that he was mad at her for sleeping with his friend as Jane Doe had finally admitted to doing,” Waldron wrote. “LIVINGSTON stated he ‘just started hitting her’ and took it too far. Livingston stated he hit Jane Doe with a flashlight and also used his foot.”

Livingston allegedly said he beat her in the bedroom and bathroom, he wrote.

FBI agents searched the house and found a flashlight with blood on it and photographs of Lamebear showed circular wounds that appeared to be consistent with the end of a flashlight, he wrote.

Autopsy report

According to the autopsy report by Lori Proe, Lamebear had multiple “bruises, scrapes and skin tears of the face and scalp” and many of them had a distinctive shape, like that of a flashlight. Her nose was broken and there was bleeding in the deep tissues of her scalp and bleeding over the surface of her brain, which was swollen, “a change that can occur when the organ is damaged and/or deprived of oxygen.”

Multiple ribs were broken and she was bleeding in her chest and what would be a bite mark on her left shoulder, Proe wrote.

According to a deputy field investigation by Harolynn Yazzie, she was covered in dried blood and her clothing was soaked in blood.

The indictment and plea

After waiving his right to a grand jury indictment, as well as a preliminary hearing, a federal grand jury indicted him on a charge of first-degree murder on Jan. 29, 2020.

On Aug. 4, 2020, Livingston pleaded guilty to a criminal information charging him with second-degree murder for beating Lamebear to death.

According to the plea deal signed by prosecutor David Cowen, Livingston will be entitled to a two-level reduction in the federal sentencing guidelines, although where that puts his sentence is unknown pending the outcome of a pre-sentence report.

According to the minutes, Magistrate Judge Laura Fashing asked why the plea needed to be held so soon, and made findings as to why the plea hearing was held, but not what those findings were. The final acceptance of the plea was deferred until the sentencing hearing in front of a district court judge.

A sentencing hearing is set for Nov. 12, 2020.

Sentencing guidelines

The base offense level, per the sentencing guidelines for second-degree murder, is 38. The plea deal provides Livingston with a two-level reduction for pleading guilty, putting the base level at 36.

According to the federal sentencing table, with little or no criminal history, that puts Livingston’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the range increases to 20 to 24 years.

According to New Mexico and federal court records, Livingston has one past criminal case, for intoxicated driving and child endangerment from March 2019. Prosecutors dismissed that the case at the magistrate level, without prejudice, on May 8, 2019 in a form dismissal and wrote that Livingston was in federal custody for “an alleged capital offense.” His past arrests or convictions in tribal court is unknown.

Federal sentencing guidelines table, levels 33 to 43.
Federal sentencing guidelines table, levels 33 to 43. Sentence ranges are in months. Second-degree murder has a base level of 38 (sentence range of 20 to 24 years) and the plea deal means a two-level reduction, to 36, creating a sentence range of 16 to 20 years.

Sentencing delayed

Although sentencing in the case was originally set for Nov. 12, 2020, it has been delayed multiple times, both at the request of Livingston’s defense attorney, Duncan, as well as at the behest of sentencing judge, Johnson, who gave no reason for the delay.

Sentenced on Sept. 8, 2021

According to detailed minutes from Livingston’s sentencing hearing, prosecutor David Cowen presented 30 exhibits, had three family members to testify and called FBI Agent David Loos to testify.

Among the exhibits were the 911 audio call, a police body cam, photos of the rooms and of the bloody flashlight, the autopsy report, photos of the victim, reports detailing Livingston damaging Lamebear’s car, prosecuted tribally, as well as photos of the damage he caused, and an interview with the victim, although it is not clear if it is from the night she died or from prior, according to the minutes.

Cowen asked for an upward departure, of 27 to nearly 34 years in prison, while Duncan wanted a sentence of 10 to 12 years.

Cowen said Livingston’s behavior was an example of “extreme conduct” but more of his position is not outlined in the minutes and Cowen appears to have filed his sentencing memorandum under seal without a judge’s required permission, against the federal court’s own rules, which appear to be rarely, if ever, enforced, according to an NM InDepth investigation.

Like Cowen’s reasoning, Duncan’s reasoning is not in the the minutes and her sentencing memorandum was filed under seal, without a judge’s permission, a violation of the court rules.

Case appealed

According to Quintana’s plea deal, he waived some of his appeal rights, but he is still explicitly allowed to appeal the judge’s sentence, if and when it went beyond the sentencing guidelines.

Chief Judge William Johnson found Quintana’s offense level was 35, and a criminal history of level of I, putting his sentence range at 14 to 17.5 years. However, Johnson sentenced Quintana to 20 years, 2.5 years above the sentencing guideline.

Sentencing documents kept secret

Many of the most important documents in the case appear to have been filed improperly under seal, either by Cowen or Duncan, according to an unredacted docket filed in the case that shows all the entries missing from the public docket.

Those missing entries include a motion to seal something, under the federal rules for grand jury secrecy, but what specifically is unknown, as well as an order granting the sealing.

A litany of other documents were sealed, and it appears all without a judge’s order, per local sealing rules. Those documents include:

  • Cowen’s sentencing memorandum
  • Objections to the presentence report, including Livingston’s statement to law enforcement, Gertrude Livingston’s statement, 911 call logs, and artwork by Livingston. Also included, but which is required to be sealed, is grand jury transcripts.
  • Livingston’s own sentencing memorandum, where he presumably asks for a large reduction in sentence
  • Cowen’s response to Livingston’s objections to the presentence investigation report
  • Notice of exhibits filed by Cowen relating to his sentencing memo
  • Livingston’s response to Cowen’s sentencing memo, including pages from the public Office of the Medical Investigator report and booking information
  • Letters from Livingston’s family

In the New Mexico local rules for the federal court, an attorney must file a request to deal a document and a judge must grant that request. In the long list of sealed documents, only a sealed motion relating to grand jury material was filed. However, it’s not clear why Johnson granted the motion, what it covered, or why, because the motion, and the order, were both sealed.

The order’s docket is only visible because it was added as an exhibit and merely requests an order “pursuant to Federal Rules of Criminal Procedure 6(e),” which referrers to the rules around grand jury secrecy. 

A 2010 guide put out by the Federal Judicial Center lays out a seven-point “procedural checklist” for documents to be sealed in federal court, including that motions to seal should be docketed publicly, as should the order to seal.

Johnson, overseeing the case and who signed off on the secret sealing order, is the court’s chief justice. Johnson was recently exposed, by Phaedra Haywood in the Santa Fe New Mexican, as being in photographs with a confederate flag during his time at the Virginia Military Institute in the late 1970s. He claimed in a written statement to the New Mexican of having no memory of posing with the flag, after recanting on an agreement to be interviewed.

NM Homicide has repeatedly reported on improperly sealed documents in the federal courts, as they appear to be a reoccurring issue.

See the documents on Google Drive or on Document Cloud

Past stories

Troy Livingston sentencing delayed to September for beating death of girlfriend

Sentencing set for Breadsprings man who beat girlfriend to death

Breadsprings man pleads to second-degree murder for beating death of girlfriend

Breadsprings man indicted for first-degree murder in beating death of girlfriend