United States District Court, D. New Mexico
C. Anderson United States Attorney William J. Pflugrath
Samuel A. Hurtado Paul Mysliwiec Assistant Attorneys for the
Nathanson Sanchez Stelzner, Winter, Warburton, Flores,
Sanchez & Dawes P.A. Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
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 issues 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 Service (“U.S. Marshals
Service”) to uncuff one of Folse's hands during his
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 includes the footnotes from the
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, [Albuquerque Police
Department (“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 ...