United States v. Folse, CR 15-2485 JB

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

No. CR 15-2485 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

February 21, 2019

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Defendant's Brief in Support of Motion for Judgment of Acquittal, filed November 23, 2015 (Doc. 117)("Motion"). The Court held a hearing on the Motion on December 16, 2015. The primary issues are: (i) whether 18 U.S.C. § 924(c)(3)(B), the residual clause in 18 U.S.C. § 924(c)(3)'s definition of a crime of violence, is unconstitutionally vague; (ii) if § 924(c)(3)(B) is unconstitutionally vague, whether carjacking, as defined in 18 U.S.C. § 2119, is not a crime of violence, because § 2119 is indivisible and carjacking is not a categorical crime of violence; and (iii) whether the Jury should have determined whether carjacking is a crime of violence, because whether carjacking is a crime of violence is an element of 18 U.S.C. § 924(c)(1), under which the Jury convicted Defendant Kevin Folse and which criminalizes using or carrying a firearm during or in relation to a crime of violence. The Court concludes that: (i) pursuant to United States v. Salas, 889 F.3d 681, 685-86 (10th Cir. 2018), § 924(c)(3)(B) is unconstitutionally vague; (ii) pursuant to United States v. Kundo, 743 F. App'x 201, 203 (10th Cir. 2018)(unpublished),¹ carjacking, as defined in § 2119 is a crime of violence; and (iii) pursuant to United States v. Morgan, 748 F.3d 1024, 1034-35 (10th Cir. 2014), the Court should not have submitted whether carjacking is a crime of violence to the Jury, because whether a crime is a crime of violence is a legal question for the court. Accordingly, the Court denies the Motion.

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 includes the footnotes from the MOO.

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 theresidence, . . . . 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,² 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."³ 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.⁴See 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.

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

PROCEDURAL BACKGROUND

On July 14, 2015, a [federal 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 of18 U.S.C. § 924(c) (Count III). See Indictment at 1-2, filed July 14, 2015 (Doc. 10)("Indictment"). On September 9, 2015, a [G]rand [J]ury 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).

MOO at 5-7, 301 F. Supp. 3d at 1041-43. On October 8, 2015, the Jury convicted Folse of the four remaining counts. See Verdict at 1, filed October 8, 2015 (Doc. 105).

During the trial, after the United States rested its case, Folse moved for a directed verdict based on the insufficiency of the evidence on the four remaining counts, and Folse moved for a directed verdict on Count 3 on the ground that, following Descamps v. United States, 570 U.S. 254 (2013), and Johnson v. United States, 135 S. Ct. 2551 (2015)("Johnson"), carjacking, as defined in 18 U.S.C. § 2119,⁵ is not a crime of violence. See Motion at 1 (citing Transcript ofTrial Proceedings at 560:16-562:16 (taken October 7, 2015), filed December 3, 2015 (Doc. 123) (Villa)("Tr."). Folse argued that the United States Court of Appeals for the Tenth Circuit cases addressing whether carjacking is a crime of violence under § 924(c)(3),⁶ which defines a "crime of violence" for § 924(c) rely on § 924(c)(3)(B), but, according to Folse, § 924(c)(3)(B) resembles the Armed Career Criminal Act's, 18 U.S.C. § 924(e) ("ACCA"), residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), which defines a crime of violence as a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another," Motion at 3 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)), and which, in Johnson, the Supreme Court of the United States...