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Prison Profiteers

Articles by Anthony Accurso

Fifth Circuit: Defendant Lacked Culpability in Attempting to Export Ammunition by Merely Purchasing It

The U.S. Court of Appeals for the Fifth Circuit held that a district court clearly erred in assigning a defendant a three-level enhancement for attempting to export ammunition when he had purchased the ammunition but was yet to take further steps toward its export.

Rodolfo Rodriguez-Leos was on a non-immigrant visa to the U.S. from Mexico when he purchased a case of ammunition from an Academy Sports store in McAllen, Texas, an illegal act based on his visa status. Federal agents followed him until he stashed the shells in a bush in a residential neighborhood. They arrested him shortly afterward in nearby Hidalgo, Texas, while he was shopping at an auto parts store.

Rodriguez admitted to purchasing the ammunition for “El Chivo,” who would pay him $50 to buy ammunition and later deliver it to an “unknown male” at a Whataburger in Hidalgo. He stashed the ammunition in McAllen, so it would not be in his possession until El Chivo called him “a day or two later.”

Rodriguez pleaded guilty to unlawful possession of ammunition, a base level of 14 as per the U.S. Sentencing Guidelines under § 2K2.1. He was enhanced to level 26 through a ...

Illinois Supreme Court: Failing to Stipulate Felon Status Allowing Jury to Hear About Murder Conviction Constitutes IAC

The Supreme Court of the State of Illinois reversed a defendant’s conviction because his attorney failed to stipulate his felon status at trial, and the jury was likely prejudiced by knowing his previous conviction was for murder.

Leslie Moore was pulled over in Joliet, Illinois, because he failed to signal his intent to turn at least 100 feet prior to turning. During the traffic stop, a gun was located in the center console of his vehicle. Because of a 1990 murder conviction, he was charged with being a felon in possession of a firearm.

Three witnesses were heard from at trial. Moore’s friend Sherry Walls testified that he was helping her move and that she had borrowed Moore’s car earlier that day. She used his car to transport her two pistols, for which she demonstrated legal proof of ownership. She testified that she placed one of the pistols in the center console and did not realize until after Moore had left that she had forgotten to remove it from the vehicle.

Will County Sheriff’s Deputy Thomas Hannon testified that he observed Moore “dip” his right hand or shoulder to the center console during the traffic stop, but ...

Interpreting Emojis as Court Evidence

Emojis on cellphones and other digital devices have advanced their popularity as a way to express emotion. It should be no surprise then that their ubiquity has brought them into court cases. However, the accepted meanings of the emojis has not caught up to their ubiquity. Enter “forensic linguistics” — a field being remade to include analysis of the meaning and usage of emojis in communication, especially where the meaning of a phrase or image can be contentious.

In the U.S., one circuit court held that the use of the “tongue out” emoji was “intended to insult, ridicule, criticize and denigrate” the plaintiff on social media platforms.

In France, in 2016, a man was convicted of threatening his ex-girlfriend and sentenced to three months in prison after sending her a gun emoji. The court said it translated to a “Death threat in the form of an image.”

In civil cases in the U.S., the “thumbs up,” “fist bump,” “handshake,” and “glasses” emojis have variously constituted an agreement or an intention to enter into a contractual agreement.

Other emojis are less definite in their interpretation. The monkey or pig emojis may be insulting, degrading, or racist depending on ...

Massachusetts Supreme Judicial Court Clarifies Standards for Exit Order and Patfrisk

The Supreme Judicial Court of the Commonwealth of Massachusetts affirmed the suppression of evidence resulting from a patfrisk that was conducted after the defendant had exited his vehicle unprompted by police, and twice looked back into it during his encounter with officers.

Manuel Torres-Pagan (“Torres”) was pulled over in a Springfield, Massachusetts, neighborhood because officers noticed his windshield was cracked and his inspection sticker expired. After officers turned on their lights, Torres pulled over into the driveway of a residence and exited the vehicle without being instructed to do so by the officers. He remained standing outside the vehicle with the door open as officers approached. On more than one occasion during the encounter, Torres turned to look inside the vehicle.

The officers decided this was “furtive” behavior, placed him in handcuffs, and performed a patfrisk on him. They found a knife in his pants pocket. They then asked him if he had any other weapons. He responded that he did, and they located a firearm on the floor of the driver’s side of the vehicle.

Prior to trial, Torres filed a motion to suppress the evidence of the weapons, claiming they were the result of an ...

First Circuit: Securing a Weapon Not Used in Offense Is Not Exigent Circumstance Permitting Warrantless Entry and Search of Suspect’s Home

The U.S. Court of Appeals for the First Circuit reversed a district court’s order denying a defendant’s motion to suppress on the basis that exigent circumstances did not exist solely because officers wanted to secure the defendant’s service weapon, absent the weapon’s proximate use to the crime or arrest.

Officer Murillo-Rivera (“Murillo”) of the Domestic Violence Division for the Ponce Region of Puerto Rico received a complaint in which the victim claimed Gabriel Rodríguez-Pacheco (“Rodríguez”), an officer in the Puerto Rico Police Department, sent her text messages threatening to publish explicit photos and videos of her if she did not rekindle their relationship.

Murillo was directed to arrest Rodríguez immediately and to secure his service weapon pursuant to General Order 2006-4 because, he testified, “according to the procedure ... anyone alleged to have committed domestic violence must immediately be placed under arrest.”

Murillo and an unspecific number of other officers located the home Rodríguez shared with several family members, and Rodríguez immediately came outside. Murillo notified Rodríguez about the complaint, his impending arrest, and the need to seize his service weapon. Murillo did not handcuff Rodríguez because he “was very cooperative and his family looked like really ...

California Supreme Court: Refusing to Testify Insufficient to Constitute Accessory After the Fact

The Supreme Court of California held that a defendant with alleged knowledge of a crime cannot be prosecuted under Penal Code § 32 as an accessory after the fact to the crime for refusing to testify when presented with a valid subpoena.

In 2006, Starletta Partee allowed her brother to borrow her rental car, which she learned later was used in the commission of a murder. When she tried to report the car as stolen, she was questioned by a homicide detective who surreptitiously recorded the interview. She told the detective what she knew about her brother’s conduct on the condition that it was off the record, because she had previously been harassed and intimidated after testifying when her boyfriend had been murdered.

Shortly thereafter, her brother, cousin, and their two friends were charged each with one count of murder. Partee could not be located in time for the 2008 trial, so the charges were dismissed.

In April 2015, law enforcement located Partee and took her into custody as a material witness. The charges against the four were reinstated, and Partee was granted use immunity for testifying, which meant she could not rely on the Fifth Amendment ...

Seventh Circuit Vacates Sentence for Failure to Explain Extreme Departure of Guidelines Range

The U.S. Court of Appeals for the Seventh Circuit vacated a defendant’s sentence because the district court failed to explain its reasoning for a 160 percent upward departure on remand where the original sentence involved only a 10 percent upward departure.

Jesse J. Ballard pleaded guilty to being a felon in possession of a firearm in 2018, his first federal offense. However, Ballard had accrued more than 30 state felony convictions between 1985 and 2017, which placed him in Criminal History Category VI of the United States Sentencing Guidelines (U.S.S.G.).

Under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), he was enhanced further, resulting in a Guidelines range of 180 to 210 months. The court sentenced him to 232 months, a 10 percent upward departure on the grounds that the Guidelines did not adequately account for his extensive criminal history.

On appeal, Ballard prevailed on the argument that he had been improperly enhanced under the ACCA. The Government conceded it had erred in counting his two Illinois attempted burglary convictions. His sentence was vacated and remanded for resentencing.

The district court calculated an amended Guidelines range of 33 to 41 months. However, without articulating any ...

Wyoming Supreme Court Finds IAC Where Counsel Failed to Challenge Prolonging of Traffic Stop After Citation Completed

The Supreme Court of Wyoming held that a defendant’s counsel was ineffective for failing to challenge the extension of the traffic stop that eventually uncovered evidence resulting in his conviction on multiple drug-related charges.

On July 10, 2017, Deputy Kyle Borgialli received notification from DCI agents regarding the description of two vehicles that agents believed had been involved in a drug transaction.

Borgialli located the vehicles and pulled one over on the premise that he had witnessed the driver commit a traffic violation, since the DCI notice did not constitute reasonable suspicion to initiate an investigatory stop.

During the stop, Borgialli ran the documents belonging to James Leonard Mills and verified that he had a valid license and insurance.

Borgialli then asked Mills to exit the vehicle so he could “explain” the traffic citation. Mills told the deputy to “explain it right here” and refused to exit the vehicle.

Officer Steven Dillard arrived on the scene with a drug-sniffing dog when Mills was refusing to exit the vehicle. Several officers were required to forcibly remove Mills from his vehicle. A pat search found methamphetamine and cocaine in his pockets. The drug dog alerted on the vehicle, and ...

California Supreme Court: Defendant Doesn’t Forfeit Claim for Failing to Object to Expert’s Testimonial Hearsay at Trial That Occurred Before Sanchez Was Decided

The Supreme Court of California held that an appellate claim of a confrontation clause violation based on an expert’s testimonial hearsay is not forfeited due to defense counsel’s failure to object where the trial occurred before People v. Sanchez, 374 P.3d 320 (Cal. 2016), was decided.

Jose Luis Perez, Edgar Ivan Chavez Navarro, and Pablo Sandoval were tried together for their roles in the kidnappings and murders of two men and the attempted murder of another.

Sabas Iniguez testified to the following: A drug dealer named Max owed a debt involving methamphetamine to the three victims (who were also drug dealers). Max was a Sinaloa cartel member, and Sandoval reported to him. Chavez reported to another cartel member named Eduardo Alvarado (whom the surviving victim identified as the shooter). One of the murder victims also was a member of the cartel to whom the survivor had reported.

The prosecution’s gang expert, Jeff Moran, testified that the Sinaloa drug cartel produces large amounts of methamphetamine and transports it to the U.S. to sell. Moran opined that Iniguez, Sandoval, Chavez, Perez, and Alvarado were all members of the Sinaloa cartel and that their coordinated efforts were consistent with ...

Nevada Supreme Court: 26-Month Delay Between Charges and Arrest Constitutes Speedy Trial Violation

by Anthony Accurso 

The Supreme Court of Nevada held that a district court did not abuse its discretion after the State’s “gross negligence” caused a 26-month delay between charges filed and arrest.

Rigoberto Inzunza was living with 9-year-old E.J.’s mother in Las Vegas in 2008. During this time, Inzunza is alleged to have sexually assaulted the girl when her mother was at work and her siblings were asleep. This abuse is alleged to have continued until Inzunza moved to New Jersey around 2009.

In late 2014, E.J. disclosed the abuse during therapy, and her mother took her to the North Las Vegas Police Department (“NLVPD”) to file a complaint. During their meeting with Detective Mark Hoyt, E.J.’s mother gave him information from Inzunza’s Facebook profile, which indicated his home and work addresses in New Jersey. Hoyt turned the complaint over to the District Attorney’s Office, which filed charges and issued a warrant for Inzunza’s arrest.

However, the DA’s office did not notify the NLVPD about the warrant being issued, nor did the department follow-up on the case.

Inzunza was arrested 26 months later on January 29, 2017, and filed to have the charges dismissed due to the delay between ...



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