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United States v. Folse

United States District Court, D. New Mexico

November 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN FOLSE, Defendant.

          John 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

         comes 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.

         FACTUAL BACKGROUND

         The 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 recitation here.

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, [1] 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.”[2] 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 6.
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.[3] 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, at 6.
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.

         MOO at 2-5, 301 F.Supp.3d at 1043-46.

         PROCEDURAL BACKGROUND

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).

         MOO at 5-7, 301 F.Supp.3d at 1041-43.

         On 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 question:

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 video?
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 that.

         Oct. 5 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 phones.
Villa: You didn't have backup batteries on you or near you?
Sanchez: No.
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?
Sanchez: Yeah.

         Oct. 5 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 time?
Clipp: Yes.
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 on foot.
Villa: So you didn't activate it until after you saw Mr. Folse leave in the Kia and came back to the Saturn?
Clipp: Correct.
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 activate ...

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