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United States v. Folse

United States District Court, D. New Mexico

January 18, 2019

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

          Ryan J. Villa Law Office of Ryan J. Villa Albuquerque, New Mexico Gregory M. Acton Acton Law Office P.C. Albuquerque, New Mexico Mary V. Carmack-Altwies Mary V. Carmack Law P.C. Albuquerque, New Mexico Timothy Wilson Cornish Albuquerque, New Mexico Sara Nathanson Sanchez Stelzner, Winter, Warburton, Flores, Sanchez & Dawes P.A. Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Defendant's Motion for Permission to Wear Civilian Clothing and be Unshackled at Sentencing, filed March 13, 2018 (Doc. 256)(“Motion”). The Court held a hearing on March 19, 2018. The primary issue are: (i) whether the Court should allow Defendant Kevin Folse to wear civilian clothing during his sentencing hearing; and (ii) whether the Court should permit Folse to be unshackled during his allocution. The Court grants the Motion in part and denies the Motion in part. The Court will permit Folse to wear civilian clothing at the sentencing hearing and will ask the United States of America's Marshals Services (“U.S. Marshals Service”) to uncuff one of Folse's hands during his allocution.

         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 ...

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