United States District Court, D. New Mexico
C. Anderson United States Attorney William J. Pflugrath
Samuel A. Hurtado Paul Mysliwiec Assistant United States
Attorneys United States Attorney's Office Albuquerque,
New Mexico Attorneys for the Plaintiff
Gregory M. Acton Albuquerque, NM and Timothy Wilson Cornish
Albuquerque, New Mexico and Sara Nathanson Sanchez Stelzner,
Winter, Warburton, Flores, Sanchez & Dawes P.A.
Albuquerque, New Mexico Attorneys for the Defendant
MEMORANDUM ORDER AND OPINION THIS MATTER
before the Court on Defendant Kevin Folse's Motion for a
New Trial, filed June 5, 2017 (Doc.
228)(“Motion”). The Court held hearings on August
1, 2017, and September 18, 2017. The primary issue is whether
the Court should grant Defendant Kevin Folse post-trial
discovery, because, after the trial, Folse discovered an
affidavit, from a prior Inspection of Public Records Act,
N.M. Stat. Ann. §§ 14-2-1, et seq.
(“IPRA”), manager at the Albuquerque, New Mexico
Police Department (“APD”), Reynaldo Chavez,
alleging that APD practiced altering lapel camera video
evidence, and Chavez made the same allegations in the
September 18, 2017, hearing. The Court will deny the Motion,
because, given Chavez' testimony at the hearing, Folse
has presented no new evidence that was unexplored at trial.
Court recited this case's facts and early procedural
history in its Memorandum Opinion and Order at 2-7, 301
F.Supp.3d 1037, 1041-46, filed October 5, 2017 (Doc.
247)(“MOO”). The Court incorporates that
The Court takes its factual account from the Presentence
Investigation Report, filed May 10, 2017 (Doc.
220)(“PSR”). . . .
Between June 30 and July 2, 2015, [APD] detectives searched
for Folse, a.k.a. “Criminal, ” who was fleeing
from law enforcement and had “committed various violent
crimes” during flight. PSR ¶ 5, at 4. On July 2,
2015, APD officers stopped a stolen black Cadillac . . . .
PSR ¶ 6, at 4. Although the officers determined that
Folse was not the driver, the driver stated that he had just
purchased the vehicle from Folse and that Folse was located
at 1825 Pitt Street NE in Albuquerque, New Mexico.
See PSR ¶ 6, at 4. APD dispatched officers to
the residence, . . . . See PSR ¶ 7, at 4. The
officers failed, however, to positively identify the man.
See PSR ¶ 7, at 4. An APD detective then
proceeded to the back of the residence and observed an
individual -- later identified as Valente Estrada --looking
out the back window. See PSR ¶ 7, at 4. Estrada
said the front door was “barricaded” and that he
was alone in the residence. PSR ¶ 8, at 5.
Shortly thereafter, the man first observed at the front door
-- later identified as Folse -- “had [Estrada] join
four other individuals in the bedroom with Angela Murray,
” Folse's girlfriend,  where Folse “proceeded
to take all of their cellular telephones and remove their
batteries . . . .” PSR ¶ 8, at 5. Estrada
“observed that Folse had both a knife and a handgun in
his possession.” PSR ¶ 8, at 5. To help
“ease the tension, ” Estrada offered Folse and
the others marijuana and methamphetamine. PSR ¶ 9, at 5.
After consuming the methamphetamine, Folse threatened to stab
one of the individuals and to hold “everyone in the
room at gunpoint for seven hours.” PSR ¶ 9, at
5. Tensions were high, because Murray had challenged Folse to
prove that he had not “been with any of the women in
the house[.]” PSR ¶ 10, at 5. In response to this
challenge, Folse “pulled out his gun and started
pistol-whipping one of the females in the home.” PSR
¶ 10, at 5.
Folse eventually decided to leave the residence, but, before
leaving, Folse ordered Estrada to hand over the keys to his
2002 silver Saturn passenger vehicle. See PSR ¶
11, at 5. Estrada complied with Folse's order, fearing
that he “had no choice . . . based on the continuous
threats and acts of violence against him.” PSR ¶
11, at 5. Folse and Murray then exited the house, and ordered
Estrada and one of Murray's female friends into the
Saturn. See PSR ¶ 11, at 5. Estrada and the
friend “did not feel they had a choice but to go with
Folse . . . .” PSR ¶ 11, at 5.
APD received information that Folse had departed the house in
a silver Saturn. See PSR ¶ 12, at 5. Officers
soon caught up to the Saturn and attempted to conduct a
traffic stop . . . . See PSR ¶ 12, at 5. . . .
[T]he vehicle . . . ”crashed violently, rolling the car
onto its roof.” PSR ¶ 13, at 6. As APD arrived on
the scene, “the vehicle was still spinning and four
individuals emerged from the broken windows.” PSR
¶ 13, at 6.
Folse and Murray fled on foot. See PSR ¶ 13, at
6. As they entered a residential street, they came upon a
2008 Kia Sorrento sitting in a driveway with the engine
running. See PSR ¶ 14, at 6. Folse opened the
driver-side door and told Michael B., a juvenile sitting in
the passenger seat, that he had “three seconds to get
out.” PSR ¶ 14, at 6. Michael B. complied with
Folse's order, but as Michael B. was exiting the car,
Folse backed the car out of the driveway and clipped Michael
B.'s left shoulder with the open car door. See
PSR ¶ 14, at 6; id. ¶ 16, at 6. In an
interview and later at trial, Michael B. testified that Folse
had a firearm; immediately after the incident, however, he
told a 911 operator that Folse did not have a firearm.
See PSR ¶ 14, at 6; id. ¶ 16, at
APD officers later located the Kia Sorrento and recognized
Folse as the driver. See PSR ¶ 15, at 6. When
the officers attempted another vehicle stop, Folse again
failed to yield. See PSR ¶ 15, at 6. “A
vehicle pursuit ensued, but was discontinued due to the
reckless driving by Folse.” PSR ¶ 15, at 6. Folse
eventually abandoned the Kia Sorrento on Interstate 40,
hopped the freeway retaining wall, and “ran towards a
business complex where he was able to get a ride out of the
area.” PSR ¶ 15, at 6.
The next day, on July 3, 2015, APD located Folse at a
Seven-Eleven store in Albuquerque. See PSR ¶
17, at 6. When officers attempted to arrest Folse, he fled
the scene in a stolen 1999 Ford F-150 truck. See PSR
¶ 17, at 6. A vehicle pursuit again ensued, but
“officers disengaged from the chase because Folse was
putting the public at risk of being harmed.” PSR ¶
17, at 6. Later that day, Isleta Pueblo Police Department
officers observed the Ford F-150 truck parked at the Isleta
Casino outside Albuquerque. See PSR ¶ 17, at 6.
After reviewing security tapes, officers confirmed that Folse
was in the Casino. See PSR ¶ 17, at 6. When
Folse exited Isleta Casino, officers arrested him without
incident. See PSR ¶ 17, at 6. The keys to the
stolen F-150 were in his pocket. See PSR ¶ 17,
In September 2015, Folse wrote a letter to a friend known as
“Creeper, ” asking him “to do what he could
in assuring that [Estrada] would not show up to
testify.” PSR ¶ 18, at 6. “The letter was
given to [Estrada] who then gave it to law
enforcement.” PSR ¶ 18, at 6-7.
2-5, 301 F.Supp.3d at 1043-46.
On July 14, 2015, a grand jury indicted Folse for: (i) being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Count I); (ii)
carjacking a silver Saturn, in violation of 18 U.S.C. §
2119 (Count II); and (iii) using, carrying, and brandishing a
firearm in relation to and in furtherance of a crime of
violence, i.e., carjacking the Saturn, in violation
of 18 U.S.C. § 924(c) (Count III). See
Indictment at 1-2, filed July 14, 2015 (Doc.
10)(“Indictment”). On September 9, 2015, a grand
jury returned a Superseding Indictment. See
Superseding Indictment 1, filed September 10, 2015 (Doc.
31)(“Superseding Indictment”). The Superseding
Indictment preserves the original Indictment's three
counts and adds two new counts. Count IV charges Folse with
carjacking a 2008 Kia Sorrento, in violation of 18 U.S.C.
§ 2119, see Superseding Indictment ¶ 4, at
3, and Count V charges Folse with using, carrying, and
brandishing a firearm in relation to and in furtherance of a
crime of violence, i.e., carjacking the Kia
Sorrento, in violation of 18 U.S.C. § 924(c),
see Superseding Indictment ¶ 5, at 3. Plaintiff
United States of America later dismissed Count V, because it
obtained evidence that Folse did not use a firearm in the
second alleged carjacking. See United States'
Unopposed Motion to Dismiss Count Five of the Superseding
Indictment ¶¶ 5-9, at 3, filed October 1, 2015
(Doc. 83). On October 8, 2015, following a three-day trial, a
jury convicted Folse on all four remaining counts.
See Verdict at 1, filed October 8, 2015 (Doc. 105).
5-7, 301 F.Supp.3d at 1041-43.
cross-examination at the trial, Folse questioned the APD
officers who were pursuing Folse when he entered the Kia
Sorrento, APD Detective Deloris Sanchez and APD Detective
Ronald Clipp, twice about their lapel cameras. See
Motion at 3; Transcript of Hearing at 5:19-22 (taken
September 18, 2017), filed October 4, 2017 (Doc.
246)(Sanchez)(“Sept. 18 Tr.”); Transcript of
Trial Proceedings at 112:19-114:3 (taken October 5, 2015),
filed December 3, 2015 (Doc. 121)(Villa, Sanchez)(“Oct.
5 Tr.”); id. at 126:6-23 (Villa, Sanchez);
Transcript of Trial Proceedings at 377:18-378:22 (taken
October 6, 2015), filed December 3, 2015 (Doc. 122)(Villa,
Clipp)(“Oct. 6 Tr.”); id. at 464:1-22
(Villa, Clipp). Folse began examining Sanchez on the
Villa: Did you have a lapel video?
Sanchez: I would have, but it was not working at the moment
because it was dead -- the battery on it was dead.
Villa: Okay. Where was your -- where do you keep your lapel
Sanchez: On my vest, right in the center.
Villa: What is a lapel video?
Sanchez: It's a small body camera that we wear.
Villa: Are there any policies within the department about
wearing those videos?
Sanchez: Yes, sir.
Villa: What are those?
Sanchez: We're obligated to wear them on certain calls,
basically, with public contact.
Villa: Any public contact?
Sanchez: For the most part, yes, sir.
Villa: What kind of battery does the video use?
Sanchez: It has an internal battery. The way I always use it
is you plug it to charge it in -- or you plug it in to charge
it, sorry. So I have a cord at my desk that I plug it into,
and it recharges.
Villa: Do you use a backup battery or anything like that?
Sanchez: Not that I'm aware of.
Villa: Do you remember when it died?
Sanchez: Not specifically. But it was a long time before
this, before the vehicle incident.
Villa: Before you got to the Pitt house or after?
Sanchez: I would have to refer to the last video I have of
Tr. at 112:19-114:3 (Villa, Sanchez). Folse continued later:
Villa: You indicated earlier that -- I believe you said your
lapel video battery was dead. Do you know why it was dead?
Sanchez: Like I said before, it was a very long night.
Everything I had on me had died: [m]y radio, both of my cell
Villa: You didn't have backup batteries on you or near
Villa: Do you know if the batteries of either of the
officers' videos cameras also went dead?
Sanchez: I know my teammates basically had similar things
happen. I can't tell you specifically what of theirs went
dead. But yeah, we were pretty much running on a skeleton
crew at that moment.
Villa: And again, that's because you had been out there
for such a long period of time?
Tr. at 126:6-23 (Villa, Sanchez). The next day, Folse turned
to Clipp, asking him about his lapel camera:
Villa: And Officer, you also had a lapel camera during this
Villa: Can you tell me when you activated that lapel camera?
Clipp: I activated it during -- once we got to the crash --
or actually it was after I came back from pursuing Mr. Folse
Villa: So you didn't activate it until after you saw Mr.
Folse leave in the Kia and came back to the Saturn?
Villa: Why not?
Clipp: We had been conducting this tactical operation plan
since 9:00 the previous night. The battery on my camera was
going dead. I had recorded a long period of time while we
were at the 1825 Pitt residence. I believe once I -- I
believe that it was dead. Then, once I went back to the crash
scene, after pursuing Mr. Folse on foot, I just attempted to