United States v. Folse

Full title: UNITED STATES OF AMERICA Plaintiff, v. KEVIN FOLSE Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date published: Feb 21, 2019

No. CR 15-2485 JB (D.N.M. Feb. 21, 2019)

Opinion

No. CR 15-2485 JB

02-21-2019

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

Counsel: 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 Sara Nathanson Sanchez Stelzner, Winter, Warburton, Flores, Sanchez & Dawes P.A. Albuquerque, New Mexico Attorney for the Defendant

SEALED MEMORANDUM OPINION AND ORDER ¹

1 In light of Defendant Kevin Folse filing his Defendant Kevin Folse's Motion to Seal a Portion of Sentencing Hearing, filed March 12, 2018 (Doc. 254), as sealed, the Court will file this Memorandum Opinion and Order under seal, but order that the parties send to the Court any proposed redactions to the Memorandum Opinion and Order, if any are necessary to protect confidential information, within fourteen calendar days of the date that this Memorandum Opinion and Order is filed. After fourteen calendar days, the Court will publicly file a redacted version of this Sealed Memorandum Opinion and Order.

THIS MATTER comes before the Court on the Defendant Kevin Folse's Motion to Seal a Portion of Sentencing Hearing, filed March 12, 2018 (Doc. 254)("Motion"). The Court held a hearing on March 19, 2018. See Sealed Clerk's Minutes, filed March 19, 2018 (Doc. 263). The primary issue is whether the Court should seal the portions of Defendant Kevin Folse's sentencing hearing in which Folse discusses his cooperation with New Mexico Corrections Department officers ("Corrections Officers"). As such information's disclosure threatens Folse's and the Correction Officers' safety, and may hamper the investigations' success and no alternative measures exist to avoid these harms, the Court will seal the relevant segments of the sentencing hearing and will seal the transcript in its entirety. Accordingly, the Court will grant Folse's 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 MOO's footnotes.

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,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.⁴ 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.

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

2 Murray was initially a co-Defendant in this matter. See Superseding Indictment ¶ 2, at 2, filed September 10, 2015 (Doc. 31)("Superseding Indictment"). The Court severed the two matters on September 29, 2015. See Order Granting Defendant Kevin Folse's Motion to Sever Defendants, filed September 29, 2015 (Doc. 72).

3 The PSR acknowledges that "[t]estimony at trial did not explain what happened inside the residence at Pitt prior to [Estrada] coming home[,] or why Folse was holding three persons at gunpoint inside the home." PSR ¶ 9, at 6.

4 The PSR, in its discussion of "Offense Behavior Not Part of Relevant Conduct," states that Folse stole the F-150 on July 1, 2015, while the vehicle's owner was inside a convenience store. PSR ¶ 52, at 10. The owner had left the keys in the ignition and the engine running. See PSR ¶ 52, at 10. The next day, on July 2, 2015, Folse was observed driving the F-150. See PSR ¶ 52, at 10.

Folse has been incarcerated at the North Facility of the Penitentiary of Santa Fe, New Mexico ("North Facility") -- a maximum security unit -- since November, 2015. See Defendant Kevin Folse's Sealed Memorandum in Support of Motion to Seal a Portion of Sentencing Hearing at 1, filed March 12, 2018 (Doc. 255)("Memo."). During this time, Folse has been cooperating with Corrections Officers "in critical undercover operations." Memo. at 2. The North Facility "houses some of the most violent and dangerous inmates in the state of New Mexico." Memo. at 4-5. The population includes many inmates with gang connections. See Memo. at 4-5. Folse has, among other things, informed the Corrections Officers about shanks hidden in inmates' cells, "worked 'undercover'" to facilitate "a purported drug transaction," and helped uncover "corruption and contraband at the prison." Memo. at 3-4. His cooperation has facilitated recovering shanks, intercepting an attack on Corrections Officers, and apprehending a Corrections Officer who was distributing drugs. See Memo. at 3-4. Aaron Vigil, the "Deputy Warden for the North Facility," Memo. at 2, promised Folse nothing for his "cooperation," but Folse returned "accurate, reliable and useful information that yielded tangible results," Memo. at 4. At the time of the Motion's filing, Folse was continuing such "cooperation and assistance." Memo. at 4-5.

PROCEDURAL BACKGROUND

On July 14, 2015, a [federal G]rand [J]ury 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 [federal 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). 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. Folse's sentencing hearing is scheduled for March 21, 2018. See Notice, filed March 9, 2018 (Doc. 253).

1. The Motion.

In the Motion, Folse requests that the Court seal "a portion of his sentencing hearing . . . so that counsel for Mr. Folse may present certain evidence and arguments to the Court which bears on the Court's sentencing analysis under the 18 U.S.C. § 3553(a) factors." Motion at 1. With the Motion, Folse filed the sealed Memo. which identifies the information that Folse seeks to protect and "explain[s] why the factors for closing criminal proceedings under Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) . . . are satisfied in this instance." Memo. at 1. In the Memo., Folse explains that Vigil described to the United States' and Folse's counsels "the nature and extent of the cooperation and assistance that Folse provided." Memo. at 2. Folse plans to reveal his cooperation at the sentencing hearing, because such cooperation "is directly relevant to the 'history and characteristics of the defendant.'" Memo. at 5 (quoting 18 U.S.C. § 3553(a)). Folse, however, worries that disclosing the information publicly will jeopardize Folse's and the Correction Officers' safety, and the ongoing investigations' success. See Memo. at 5.

Folse cites Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)("Press-Enterprise II"), for the test for closing or sealing criminal proceedings to the public. See Memo. at 5-6. According to Folse, "A criminal proceeding may be closed if: (1) closure serves a compelling interest; (2) there is a "substantial probability" that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest." Memo. at 6 (quoting and citing Press-Enterprise II, 478 U.S. at 13-14). Folse notes that the United States Courts of Appeals for the Fourth and Ninth Circuits have cited Press-Enterprise II "to close or seal plea hearings and sentencing hearings," Memo. at 6 (citing In re Wash. Post Co., 807 F.2d 383 (4th Cir. 1986); United States v. Homan, No. 2:14-cr-0213-GEB, 2016 U.S. Dist. LEXIS 72875 (E.D. Cal. June 3, 2016)(Burrell, Jr., J.)), and that the United States Court of Appeals for the Tenth Circuit and the United States District Court of New Mexico have applied Press-Enterprise II to seal documents, see Memo. at 6 (citing United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997); United States v. Lymon, No. CR 15-4082 MCA, 2016 WL 9775017 (D.N.M. Nov. 7, 2016)(Armijo, J.)). Folse argues that his situation satisfies Press-Enterprise II's test: (i) sealing the sentencing hearing serves the compelling interests of preserving Folse and Corrections Officers' safety, and maintaining the operations' "integrity," Memo. at 6; (ii) sealing the sentencing hearing protects against the substantial probability that revealing Folse's participation will jeopardize Folse and the Correction Officers' safety and damage the investigations, see Memo. at 6, and (iii) no alternative to sealing the sentencing hearing would protect Folse and the Corrections Officers or the investigation and would enable Folse to recount his cooperation for the purposes of sentencing, see Memo at 7.

Folse admits that the United States refuses to submit a "§ 5k motion on Mr. Folse's behalf." Memo. at 7. Folse contends that the United States generally files such motions under seal, and that he should have the opportunity to present evidence of his cooperation without choosing between such presentation and his safety. See Memo. at 7. Folse finally asserts that, in this situation, the Department of Justice ("DOJ") would permit the sentencing hearing's closure or sealing. See Memo. at 8. Folse quotes the DOJ guidelines:

(c) A Government attorney shall not move for or consent to closure of a proceeding covered by these guidelines unless:

(1) No reasonable alternative exists for protecting the interests at stake;

(2) Closure is clearly likely to prevent the harm sought to be avoided;

(3) The degree of closure is minimized to the greatest extent possible;

(4) The public is given adequate notice of the proposed closure; and, in addition, the motion for closure is made on the record, except where the disclosure of the details of the motion papers would clearly defeat the reason for closure specified under paragraph (c)(6) of this section;

(5) Transcripts of the closed proceedings will be unsealed as soon as the interests requiring closure no longer obtain; and

(6) Failure to close the proceedings will produce;

(i) A substantial likelihood of denial of the right of any person to a fair trial; or

(ii) A substantial likelihood of imminent danger to the safety of parties, witnesses, or other persons; or

(iii) A substantial likelihood that ongoing investigations will be seriously jeopardized.

28 C.F.R. § 50.9(c).

2. The Response.

The United States responded on March 13, 2018. See United States' Response to Motion to Seal Sentencing Hearing, filed March 14, 2018 (Doc. 258)("Response"). The United States contends that the Court need not seal the sentencing hearing. See Response at 5. According to the United States, it cannot, under DOJ policy, consent to seal the sentencing hearing. See Response at 3 (citing 28 C.F.R. § 50.9). The United States contends that it never requested Folse's cooperation and refutes Folse's allegations about harms to his safety or to the investigation by noting that Folse describes only generalized, not specific, threats to his safety, and that Folse's "status as a cooperator is already known to the public at large." Response at 4 (citing Mike Gallagher, Carjacking Drug Dealer Was an FBI Informant Albuquerque J. (published Dec. 21, 2015), filed March 14, 2018 (Doc. 258-1). According to the United States, no additional steps to protect Folse's identity, therefore, are necessary. See Response at 4.

The United States describes:

Defendant faces a long term of imprisonment and the public deserves to witness the sentencing hearing in its entirety. For years, Defendant, a career criminal, has terrorized the citizens of Albuquerque. In addition to the offenses of conviction, his conduct incudes numerous, uncharged and unaccounted for state crimes. . . . It is anticipated that a few of those witnesses may appear at the sentencing hearing.

Response at 3-4. The United States proceeds to characterize Folse as "a chameleon who may express regret because he thinks that is what will serve him best," without "regard for how his actions may affect others," and engaged in "a mendacious and desperate last ditch effort to put forth information before the Court that would put downward pressure as a variance to the requested sentence." Response at 4-5.

3. The Reply.

Folse replied on March 16, 2018. See Defendant Kevin Folse's Sealed Reply in Support of His Motion to Seal a Portion of Sentencing Hearing, filed March 16, 2018 (Doc. 262)("Reply"). Folse disparages the United States' colorful language and ill-aimed arguments. See Reply at 1-2. Folse first argues that he and the Corrections Officers who will testify cannot describe Folse's corporation without revealing his or their identities, and endangering him or themselves. See Reply at 2. Second, Folse contends that, if the Court does not seal the sentencing hearing, the Court will effectively deprive him of the opportunity to "present any information to mitigate the sentence," and the right to allocute guaranteed in rule 32 of the Federal Rules of Criminal Procedure. Reply at 2-3 (citing Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v. Jarvi, 537 F.3d 1256, 1261-62 (10th Cir. 2008)(stating that limiting the allocution's scope "impermissibly" denies the defendant's right to allocution)). Third, Folse argues that the United States ignores the conditions that 28 C.F.R. § 50.9(c) lists, including: (i) "[c]losure is clearly likely to prevent the harm sought to be avoided," 28 C.F.R. § 50.9(c)(2), and

(6) Failure to close the proceedings will produce;

(i) A substantial likelihood of denial of the right of any person to a fair trial; or

(ii) A substantial likelihood of imminent danger to the safety of parties, witnesses, or other persons; or

(iii) A substantial likelihood that ongoing investigations will be seriously jeopardized.

28 C.F.R. § 50.9(c)(6). Folse observes that the United States argues that Folse "is a Really Bad Guy," and does not confront or object to 28 C.F.R. § 50.9(c)'s criteria. Reply at 3. Fourth, Folse insists that credit under 18 U.S.C. § 3553(a), or any part of the U.S. Sentencing Guidelines Manual (U.S. Sentencing Comm'n)("U.S.S.G."), does not turn on whether the United States requested a defendant's cooperation. See Reply at 4. Folse bolsters his argument by quoting § 5k1.1 to show that it nowhere requires that the United States seek a defendant's assistance. See Reply at 4 (quoting U.S.S.G. § 5k1.1). Folse cites United States v. Diego Encinias, No. CR 12-1545 WJ, (Sealed) Motion for Downward Departure, filed August 22, 2014 (Doc. 364), filed in this case March 16, 2018 (filed in this case as Doc. 262-1), to illustrate that the United States has previously recognized a defendant's "unsolicited assistance." Reply at 5. Finally, Folse mocks the United States' allegation that Folse's cooperation furthered only his own interests. See Reply at 5. Folse suggests that all defendants cooperate for their own reasons and that, even if impure motives drove Folse to begin cooperating, Folse endangered and is endangering himself through his cooperation. See Reply at 5.

4. The Hearing.

The Court began the hearing by explaining that, previously, when the United States has opposed sealing a sentencing hearing, the Court has sealed the sentencing hearing's transcript even it has not sealed not the sentencing hearing. See Draft Transcript of Hearing at 11:25-12:9 (taken March 19, 2018)(Court)("March 19 Tr.").⁵ The Court inquired whether the United States objects to thus sealing the transcript. See March 19 Tr. at 12:9-12 (Court). The United States answered that it does not oppose taking such action. See March 19 Tr. at 12:13-14 (Hurtado).

5 The Court's citations to the transcripts of the hearings refer to the court reporter's original, unedited versions. Any final transcripts may contain slightly different page and/or line numbers.

To resolve the dispute over sealing the sentencing hearing, the Court then suggested that the Court ask any reporters who attend the sentencing hearing not to report what they hear regarding Folse's cooperation, or that the Court and parties discuss Folse's cooperation at the bench, from which the Court will block the conservation with white noise. See March 19 Tr.at 12:15-13:15 (Court). The United States clarified that it "is not of course seek[ing] to restrain the press at all," March 19 Tr. at 13:17-18 (Hurtado), but confirmed that the Court has discretion to take the suggested steps, see March 19 Tr. at 13:19-20 (Hurtado). Folse indicated that, given his cooperation's nature, he worries about his cooperation haunting him after he leaves the North Facility and about his witnesses refusing to testify should a reporter or an unknown individual appear in the courtroom. See March 19 Tr. at 13:23-14:14 (Sanchez). Folse reiterated that this situation qualifies as one in which the Court should close the sentencing hearing under 28 C.F.R. § 50.9. See March 19 Tr. at 14:3-7 (Sanchez). Folse acknowledged that he could meet with the Court in camera before the sentencing hearing to discuss further the issue or to enable the Court to speak to a Corrections Officer about the issue. See March 19 Tr. at 15:7-11 (Sanchez). Folse emphasized that his concerns most centered on whether the Corrections Officers would testify should anyone attend the sentencing hearing. See March 19 Tr. at 15:12-15 (Sanchez).

At the hearing's conclusion, the Court stated that, at the time, it would not seal the sentencing hearing, but that it would seal the transcript. See March 19 Tr. at 15:16-17 (Court). The Court preferred to take the decision to seal the sentencing hearing "a step at a time." March 19 Tr. at 16:14 (Court). See id. at 15:12-15 (Court). The Court mused that, to save money, the Albuquerque Journal frequently perused the Court's filings after a hearing or a trial rather than send a reporter to the courthouse. See March 19 Tr. at 15:19-16:5 (Court). Finally, the Court summarized that it understood cooperation's risks, but that the Court had to balance public interest in the case. See March 19 Tr. at 16:12-21 (Court). The Court stated that it would grant the Motion in part and wait until the sentencing hearing to determine whether to grant the Motion in full. See March 19 Tr. at 16:21-24 (Court).

The Court held the sentencing hearing three days later. See Notice at 1. At the sentencing hearing, before Folse discussed his cooperation, the parties held a conference at the bench. See Draft Transcript of Hearing at 19:20-24 (taken March 21, 2018)(Sanchez, Court)("March 21 Tr."). The Court observed that it saw no press members in the audience but indicated that the Court would seal those portions of the hearing during which Folse discussed his cooperation and ask Michael B.'s father to leave the courtroom for during that time. See Tr. at 20:4-8; id. at 20:10-14 (Court). The Court explained that, in giving the sentence, it would not list Folse's cooperation as a consideration putting downward pressure on the sentence but that the Court did understand the cooperation to exert such pressure on the sentence. See Tr. at 20:16-23 (Court). At the sentencing hearing's end, Folse requested that the Court seal the entire transcript, and the United States acceded to the request. See March 21 Tr. at 144:5-20 (Sanchez, Mysliwiec).

LAW REGARDING SEALING CRIMINAL PROCEEDINGS AND DOCUMENTS

When considering sealing a criminal proceeding or document, a court should first inquire whether the First Amendment to the United States Constitution protects a right of access to the proceeding or document. See, e.g., Press-Enterprise II, 478 U.S. at 7-9. The First Amendment safeguards public access to criminal trials and some other criminal proceedings. See Press-Enterprise II, 478 U.S. at 7-8.

The Supreme Court [of the United States] has developed a two-part test for determining whether there is a First Amendment right of access to a particular criminal proceeding: (1) whether the proceeding has historically been open to the public and press; and (2) "whether public access plays a significant positive role in the functioning of the particular process in question."

In re Hearst Newspapers, L.L.C., 641 F.3d 168, 175 (5th Cir. 2011)(quoting Press-Enterprise II, 478 U.S. at 8-9, and citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505-09 (1984)("Press Enterprise I")). Courts have described this analysis "as the 'experience' and 'logic' test." In re Hearst Newspapers, L.L.C., 641 F.3d at 175 (citing Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 602, 611 (1982); Press-Enterprise II, 478 U.S. at 9). The Supreme Court has concluded that the public right of access adheres to criminal trials -- including witness testimony at such trials -- voir dire, and some preliminary hearings. See, e.g., Press-Enterprise II, 478 U.S. at 12 (recognizing a right to access the State of California preliminary hearings); Press-Enterprise I, 464 U.S. at 505-11 (identifying a right to access voir dire); Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. at 602, 611 (holding that the public has a right to access minor victim's testimony in "sex-offense trial[s]"); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)(finding a "right to attend criminal trials"). Courts of Appeals have expanded such First Amendment protection to various other criminal proceedings and documents. See, e.g., United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005)(identifying a public right of access to plea proceedings); United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997)(citing Wash. Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991)(finding right of access to plea agreements); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988)(holding a public right of access to "affidavits accompanying search warrants"); In re N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987)(finding a public right of access to suppression motion and accompanying documents)); United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989)(finding a public right of access to plea proceedings). The Fourth and Ninth Circuit and the United States Courts of Appeals for the Second, Fourth, Fifth, Seventh, and Ninth Circuits have, for instance, recognized a public right of access to sentencing hearings. See In re Hearst Newspapers, L.L.C., 641 F.3d at 176; United States v. Alcantara, 396 F.3d at 196; United States v. Eppinger, 49 F.3d 1244, 1252-53 (7th Cir. 1995); In re Wash. Post Co., 807 F.2d at 389; CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d 823, 825 (9th Cir. 1985).

Where a court determines that a First Amendment right of access exists, the court should employ the balancing test articulated in Press Enterprise I. See Press Enterprise I, 464 U.S. at 510; United States v. Gonzales, 150 F.3d at 1256 (10th Cir. 1998). The court should close the protected proceedings or documents only when the First Amendment right is "overcome by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." United States v. Gonzales, 150 F.3d at 1256 (quoting Press Enterprise I, 464 U.S. at 510). "'[T]he interests of personal privacy' of the innocent third parties [are] 'sufficiently compelling to overcome the presumption of access.'" United States v. Jager, No. CR 10-1531 JB, 2011 WL 13285416, at *4 (D.N.M. June 23, 2011)(Browning, J.)(quoting United States v. Sattar, 471 F. Supp. 2d 380, 388 (S.D.N.Y. 2006)(Koeltl, J.)). See Press-Enterprise I, 464 U.S. at 512 ("[A] valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment."); New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286, 304-05 (2d Cir. 2012)(stating that the Second Circuit has recognized that privacy interests may deserve protection through closure); United States v. Brice, 649 F.3d 793, 796 (D.C. Cir. 2011)(upholding a district court's decision to seal documents to protect "sensitive and highly personal information" about juvenile's medical and other information).

ANALYSIS

The Court will seal portions of the sentencing hearing and the whole transcript. As the Tenth Circuit has not decided whether the public has a right of access to sentencing hearings, the Court first must address Press Enterprise II's test for determining when such a right exists before the Court turns to the balancing test, which Folse urges the Court to apply. See Memo. at 1, 5-6. Preliminarily, the Supreme Court did not distinguish the in-court proceedings from the transcripts in either Press Enterprise I or Press Enterprise II. See Press Enterprise II, 478 U.S. at 4-6, 13; Press Enterprise I, 464 U.S. at 513. When applying Press Enterprise II's analysis, the Court does not, therefore, differentiate between the right of access to the sentencing hearing and such a right to the related transcript. The Court concludes that the First Amendment protects a public right of access to sentencing hearings. Further, Folse's and the Correction Officers' safety, and the investigations' integrity are overriding interests that only closure will protect. Accordingly, the Court grants Folse's Motion. I. THE FIRST AMENDMENT SAFEGUARDS THE PUBLIC RIGHT OF ACCESS TO SENTENCING HEARINGS.

First, the Court must determine whether the First Amendment safeguards public access to sentencing hearings and their transcripts. The Tenth Circuit has not decided whether such safeguards exist in the sentencing hearing context. The Court, therefore, applies Press-Enterprise II's two-step inquiry: (i) "experience" -- "whether the proceeding has historically been open to the public and press"; and (ii) "logic" -- "'whether public access plays a significant positive role in the functioning of the particular process in question.'" In re Hearst Newspapers, L.L.C., 641 F.3d at 175 (quoting Press-Enterprise II, 478 U.S. at 8-9, and citing Press-Enterprise I, 464 U.S. at 505- 09). The Court concludes that, under the First Amendment, the public has a right of access to sentencing hearings and the related transcripts.

Preliminarily, the Court agrees with the Second, Fourth, and Fifth Circuits that sentencing hearings "arguably fall within the scope of the right of access to criminal trials," In re Wash. Post Co., 807 F.2d at 389 (emphasis in original), to which the Supreme Court has already concluded the public has a right of access, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 580. See United States v. Alcantara, 396 F.3d at 197; In re Hearst Newspapers, LLC, 641 F.3d at 177. The Fourth Circuit explained:

Sentencing may also be viewed as within the scope of the criminal trial itself. Sentencing can occur before the termination of the trial proceeding, and, even if it occurs in a separate hearing, it clearly amounts to the culmination of the trial. Moreover, . . . [they] are surely as much an integral part of a criminal prosecution as are preliminary probable-cause hearings, suppression hearings, or bail hearings, all of which have been held to be subject to the public's First Amendment right of access.

In re Wash. Post Co., 807 F.2d at 389. The sentencing hearing, like the other proceedings to which courts have extended the public right of access, is part of the greater criminal process, and should implicate the same public access concerns. See CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d at 825 ("We find no principled basis for affording greater confidentiality to post-trial documents and proceedings than is given to pretrial matters.").

The Court nevertheless follows the Supreme Court's dictates and applies Press-Enterprise II's inquiry to determine whether a public right of access adheres to a criminal proceeding other than criminal trials -- here, sentencing hearings. The Court first concludes that the American "experience" counsels toward concluding that such a right exists. In re Hearst Newspapers, L.L.C., 641 F.3d at 175. The public has traditionally enjoyed access to sentencing hearings. See In re Wash. Post Co., 807 F.2d at 389 ("Sentencings have historically been open to the public"); CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d at 825 ("[C]riminal trials historically have been open to the press and the public[.]"). The Second Circuit recites several nineteenth-century cases for which courts held open sentencing hearings:

Numerous cases from over a century ago describe sentencing proceedings held in open court. See, e.g., Wilkerson v. Utah, 99 U.S. 130, 130-31 . . . (1878)("[T]he record also shows that the presiding justice in open court sentenced the prisoner as follows . . . ."); Wright v. State, . . . 15 So. 506, 507 (1894)("The sentence can be pronounced only in open court, with the defendant present, and should be preceded by enquiring of the defendant if he has anything to say why the sentence of the law should not be pronounced."); Palmquist v. State, . . . So. 521, 522 (1892)("The personal presence of the accused in open court when sentence was passed upon him is also shown."); State v. Chancellor, 32 S.C.L. (1 Strob.) 347 (1847)("All sentences must be passed in open Court, and in the presence of the party. Exposure to the public eye is a material part of every sentence, and leads to much judicial consideration."); Washington v. State, . . . 19 S.W. 900, 900 (1892)("[Defendant Washington] was brought into open court to receive the sentence of the court in accordance with the previous verdict and judgment.").

United States v. Alcantara, 396 F.3d at 197-98. The Fifth Circuit fills out this history with high-profile, open sentencing hearings from the twentieth and twenty-first centuries:

These include numerous high profile cases of defendants who were considered dangerous: the open trial and sentencing proceeding held in the Southern District of Texas (Houston) for Juan Garcia Abrego, who was a predecessor of Cardenas-Guillen as the leader of the Gulf Cartel; the open sentencing held in the Southern District of New York for Jorge Mario Paredes-Cordova, who was "designated by the United States Department of Justice as one of the world's most significant drug kingpins"; the open sentencing proceeding held in the Eastern District of Virginia for Zacarias Moussaoui, for his participation in the attacks of September 11, 2001; the open sentencing proceeding held in the Southern District of New York for Mohamed al-'Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and Wadih el-Hage, for their roles in the 1998 bomb attacks on American embassies in Kenya and Tanzania; the open trial and sentencing proceeding held in the Southern District of New York for Ramzi Yousef, for his role in the 1993 bombing of the World Trade Center; the open trial held in the Northern District of Illinois for Al Capone; the open sentencing proceeding held in the Eastern District of New York for John Gotti; and the open trial and sentencing of Timothy McVeigh for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

In re Hearst Newspapers, L.L.C., 641 F.3d at 177-79. In the present day, ordinary practice continues to reflect this tradition of open sentencing hearings. Since the Court joined the bench, the Court has rarely closed sentencing hearings. Such traditions and practices convince the Court that the Press-Enterprise II test's first prong points to recognizing the public's right of access to sentencing hearings.

"Logic" similarly steers the Court toward acknowledging such a right of access. In re Hearst Newspapers, L.L.C., 641 F.3d at 175. Open sentencing hearings check the courts' and counsels' exercises of power, validate the government, and assuage the community. See, e.g., In re Wash. Post Co., 807 F.2d at 389 ("The presence of the public operates to check any temptation that might be felt by either the prosecutor or the court . . . to seek or impose an arbitrary or disproportionate sentence."); CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d at 825 ("[A]ccess to criminal trials plays a significant role in the functioning of the judicial process and the governmental system[.]"). The Second Circuit expands on the "'community therapeutic value' of open proceedings in criminal cases":

The proceedings are also extremely significant to victims of crimes, to family members of victims, and to members of the community in which the crime occurred. The Supreme Court has described the "community therapeutic value" of open proceedings in criminal cases. Richmond Newspapers, 448 U.S. at 570 . . . ; see also Press-Enterprise II, 478 U.S. at 13 . . . ("Criminal acts, especially certain violent crimes, provoke public concern, outrage, and hostility. 'When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions.'" (quoting Press-Enterprise I, 464 U.S. at 509 . . . )). Access to sentencing proceedings -- and to guilty plea proceedings -- is particularly important because most cases do not go to trial.

United States v. Alcantara, 396 F.3d at 198-99. The Court agrees with the Fifth Circuit that open sentencing hearings advance the same purposes as those that open criminal trials and pre-trial proceedings support:

To begin with, "[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power . . . ." Richmond Newspapers, Inc., 448 U.S. at 596 . . . (quoting In re Oliver, 333 U.S. 257, 270 . . . (1948))(quotation marks omitted) . . . . [T]he fact that there is no jury at the sentencing proceeding, in contrast to jury trials, heightens the need for public access.

. . . .

Relatedly, openness in a trial builds public confidence in the criminal justice system because members of the public can observe whether justice is being carried out in adjudicating guilt or innocence. Richmond Newspapers, Inc., 448 U.S. at 595 . . . . Likewise, openness in the sentencing context allows the public to observe whether the defendant is being justly sentenced, especially where the court, rather than a jury, is determining the sentence.

. . . .

Similarly, openness of a proceeding also promotes more accurate fact-finding, either because witnesses are more hesitant to commit perjury in a proceeding open to the public, or because "key witnesses unknown to the parties" may learn about a trial if it is public. Richmond Newspapers, Inc., 448 U.S. at 596-97 . . . . As there may well be witnesses and contested issues of fact in a sentencing proceeding, . . . this rationale applies in a sentencing proceeding as much as it applies in a trial.

Relatedly, the Supreme Court has explained that "[u]nderlying the First Amendment right of access to criminal trials is the common understanding that 'a major purpose of that Amendment was to protect the free discussion of governmental affairs,'" Globe Newspaper Co., 457 U.S. at 604 . . . (quoting Mills v. Alabama, 384 U.S. 214, 218 . . . (1966)), and "to ensure that this constitutionally protected 'discussion of governmental affairs' is an informed one," id. at 605 . . . . This rationale also applies in the sentencing context.

. . . .

Finally, there is a "community therapeutic value" to having an open proceeding, because of the concerns and emotions of members of the public who have been affected by a crime or crimes. Richmond Newspapers, Inc., 448 U.S. at

570 . . . . "When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion." Id. at 571 . . . . This rationale applies as strongly in a sentencing proceeding as it does in a trial.

In re Hearst Newspapers, L.L.C., 641 F.3d at 179-81. The Court, therefore, concludes that the Press Enterprise II test's second prong also supports a public right of access to sentencing hearings, and that the Court will recognize such a right. II. FOLSE'S AND THE CORRECTIONS OFFICERS' SAFETY , AND THE INVESTIGATIONS' INTEGRITY ARE HIGHER INTERESTS, AND SEALING PORTIONS OF THE SENTENCING HEARING AND THE ENTIRE TRANSCRIPT ARE NARROWLY TAILORED TO FURTHER THOSE INTERESTS .

The Court will seal the sentencing hearing and the transcript if the public's presumptive access to the proceeding is: (i) "overcome by an overriding interest"; and (ii) "closure is essential to preserve higher values and is narrowly tailored to serve that interest." United States v. Gonzales, 150 F.3d at 1256 (quoting Press Enterprise I, 464 U.S. at 510). The Court concludes that Folse's and the Corrections Officers' safety, and the investigations' integrity, are overriding interests. Sealing portions of the sentencing hearing and the transcript advance these interests, and such closure is narrowly tailored to protect the interests.

First, Folse's and the Corrections Officers' safety and privacy, and the investigations' integrity, are overriding interests. The Court has acknowledged that "'the interests of personal privacy' of the innocent third parties [are] 'sufficiently compelling to overcome the presumption of access.'" United States v. Jager, 2011 WL 13285416, at *4 (quoting United States v. Sattar, 471 F. Supp. 2d at 388). Here, disclosure threatens more than Folse's and the Corrections Officers' privacy; it jeopardizes their safety. Folse has, among other things, informed the Corrections Officers about shanks hidden in inmates' cells, "worked 'undercover'" to facilitate "a purported drug transaction," and helped uncover "corruption and contraband at the prison." Memo. at 3-4. His cooperation with the Corrections Officers continues. See Memo. at 4-5. Both Folse and the Corrections Officers fear that inmates and officers will retaliate for the New Mexico Corrections Department investigations. The Court has an overriding interest in ensuring a defendant's and third parties' safety. See, e.g., N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d at 304-05 (recognizing that "a person's physical safety" may "warrant closure" (internal quotation marks and citations omitted)). Cf. Presley v. Georgia, 558 U.S. 209, 215 (2010)("There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire."); United States v. Wecht, 537 F.3d 222, 254-55 (3d Cir. 2008)(identifying an interest in protecting jurors, potential jurors, and their families from threats or intimidation). Folse, therefore, has presented an overriding interest. Moreover, the interests in protecting the New Mexico Corrections Department's ongoing investigations, as detailed in the Procedural Background section, and in, correspondingly, concealing the investigators' and cooperators' identities overrides the public's interest in open proceedings. See, e.g., Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997)("The state interest in maintaining the continued effectiveness of an undercover officer is an extremely substantial interest, and the trial judge in each case was amply justified in concluding that this interest would be seriously prejudiced by requiring the officer to testify in an open courtroom."); United States v. Valenti, 987 F.2d 708, 714 (11th Cir. 1993)(finding a compelling interest in "protection of a continuing law enforcement investigation"). The Court, accordingly, identifies two overriding interests.

Second, closure is essential and narrowly tailored to protect these overriding interests. The Court can envision no other means to protect such interests than to seal portions of the sentencing hearing and to seal the transcript. Even if Folse's "status as a cooperator is already known to the public at large," overriding interests remain in concealing the Corrections Officers' past and ongoing investigations. Response at 4 (citing Gallagher, supra). Although the Court could screen the information by asking Folse not to present evidence about his participation, the Court will not go that route. The Court can and will consider Folse's cooperation under 18 U.S.C. § 3553(a), see 18 U.S.C. § 3553(a)(directing courts to consider "the history and characteristics of the defendant"), and the Court will not deny Folse the opportunity to present evidence -- including the Corrections Officers' testimony -- on his behalf. As the information's disclosure will place Folse's and the Corrections Officers' involvement in the public realm, and make the information broadly accessible, the Court, like other courts that have acknowledged overriding interests in protecting third persons and safeguarding investigations, deems closure warranted. See, e.g., Ayala v. Speckard, 131 F.3d at 72 (concluding that the interest in protecting ongoing investigations warranted closure); United States v. Valenti, 987 F.2d at 714-15 (upholding closure to protect a "continuing law enforcement investigation"). See also David L. Snyder, Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit, 35 Fordham Urb. L.J. 1263, 1264-65 (2008)("As the United States Department of Justice noted, the emergence of a 'cottage industry' of websites that republishes court filings online for the purposes of witness intimidation, retaliation, and harassment poses 'a grave risk of harm' to cooperating witnesses and defendants." (quoted in United States v. Requejo, No. 08-CR-169-2-ABJ, 2009 WL 10695124, at *4 (D. Wyo. Apr. 24, 2009)(Johnson, J.)). Accordingly, the Court concludes that the balancing test permits closure in this situation. III. THE COURT WILL SEAL PORTIONS OF THE SENTENCING HEARING AND WILL SEAL THE ENTIRE TRANSCRIPT.

As discussed in the section above, the Court deems closure warranted here. The Court will seal those portions of the sentencing hearing during which Folse and the Corrections Officers discuss Folse's cooperation and the New Mexico Corrections Department investigations and, because those discussions perfuse the hearing and the transcript, the Court will seal the entire transcript. See generally March 21 Tr. As Folse and the Corrections Officers will likely remain in contact with the inmate and officer communities, from which they confront the retaliation threat, the Court will keep the transcript sealed. Cf. In re Hearst Newspapers, L.L.C., 641 F.3d at 181 (noting that "'the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding' the interest that gave rise to the need for closure" (quoting Press-Enterprise I, 464 U.S. at 512)).

The United States' arguments against closure do not convince the Court. The United States concentrates on Folse's crimes, and, in Folse's words, stresses that Folse "is a Really Bad Guy." Reply at 3. Folse's history, however, is largely irrelevant to whether closure is necessary to protect Folse, the Corrections Officers, and the ongoing investigations. Even if the community would receive some "therapeutic value" from seeing Folse openly sentenced for his crimes, Richmond Newspapers v. Virginia, 448 U.S. at 570, that value does not and should not outweigh innocent, third parties' safety or Folse's safety. Moreover, the Court agrees with Folse that, in the United States' efforts to villainize Folse, the United States ignores 28 C.F.R. § 50.9(c)'s exceptions to its bar on "mov[ing] for or consent[ing] to closure of a proceeding." 28 C.F.R. § 50.9(c). Here, at the least, one exception applies; as discussed in the two preceding sections, "[c]losure is clearly likely to prevent the harm sought to be avoided." 28 C.F.R. § 50.9(c)(2). The Court, accordingly, grants Folse's Motion.

IT IS ORDERED that: (i) Defendant Kevin Folse's Motion to Seal a Portion of Sentencing Hearing, filed March 12, 2018 (Doc. 254), is granted; and (ii) the Court will seal the relevant segments of the sentencing hearing and will seal the transcript in its entirety.

/s/_________

UNITED STATES DISTRICT JUDGE Counsel: 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 Sara Nathanson Sanchez
Stelzner, Winter, Warburton, Flores, Sanchez & Dawes P.A.
Albuquerque, New Mexico

Attorney for the Defendant