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Articles by Anthony Accurso

7th Circuit: Ice Methamphetamine Sentence Enhancement Requires Proof of Purity

Scott Carnell pleaded guilty to a conspiracy to distribute 50 grams or more of meth under 21 U.S.C. ...

New Mexico Supreme Court Clarifies Meaning of Key Terms in Aggravated Fleeing From Law Enforcement Statute

Roy D. Montano and William Daniel Martinez both were charged with ...

They’re Not Secret Police, Just Police

Startup Surveils Communities of Color for Police Using Twitter

Dataminr’s early backers included Twitter and the ...

How to Spot Surveillance at Protests

by Anthony Accurso

The Electronic Frontier Foundation’s (“EFF”) Senior Investigative Researcher Dave Maass has posted a 25-minute video titled “How To Observe Police Surveillance at Protests.” In it, Maass explains the visible and non-visible tools deployed against protesters.

First and foremost, anything with a camera can be used by police ...

Mississippi Supreme Court: Cannot Declare Mistrial on All Counts After Jury’s Acquittal on Some Counts

by Anthony Accurso

The Supreme Court of Mississippi held that a district court erred when it ordered a mistrial on all three counts of an indictment after the jury had returned an acquittal on two of the counts.

Johnathan Nickson was tried in mid-2018 on two counts of first-degree murder for killing Nedra Johnson and Bradley Adams and one count of being a felon in possession of a firearm.

During the trial, the court instructed the jury that it could find Nickson guilty or not guilty on each count of first-degree murder, but if the jury found him not guilty, it must then consider whether he was guilty of second-degree murder.

The jury was sent out for deliberations and sent a note back that it was deadlocked. The court recalled the foreperson and instructed the jury to “return the verdict on whatever counts you’ve decided on and then come back.” The jury returned and advised that it had unanimously agreed to acquit Nickson for first-degree murder on counts one and two, but it remained deadlocked as to second-degree murder on those counts and the possession count.

The court impressed upon the jury the necessity of returning a verdict and ordered ...

Colorado Supreme Court: Felony DUI Conviction Requires ‘Mandatory Sentencing’ Triggering Right to Preliminary Hearing


by Anthony Accurso 

The Supreme Court of Colorado, proceeding from original jurisdiction on appeal from a district court, held that the district court erred in denying a preliminary hearing to a defendant charged with a class 4 felony DUI simply because he was free on personal recognizance pending conviction. 

Donald Eugene Huckabay was arrested on May 25, 2019, and charged with misdemeanor DUI. The next day, he was released on personal recognizance. The People then amended his charge to a class 4 felony DUI because he had at least three prior convictions for DUI. 

On December 30, 2019, Huckabay moved for a preliminary hearing under § 16-5-301(1)(a), C.R.S. (2019) and Crim. P. 7(h)(1) – which is a judicial determination of whether there is probable cause sufficient to subject the defendant to trial. 

In People v. Tafoya, 434 P.3d 1193 (Colo. 2019), the Colorado Supreme Court established that a defendant who was charged with a class 4 felony DUI, and was in custody, was entitled to a preliminary hearing. This was important because the crime of felony DUI results from a recent statutory amendment.

The district court denied Huckabay’s motion, relying on Tafoya because Huckabay ...

Second Circuit: Nondescript Photo of Unidentified Black Male Insufficient Grounds to Conduct Investigatory Stop

On September 2, 2017, Jaquan Walker and Javone Hopkins were walking through the Central Business District of Troy, New York, around 6:50 p.m. when Sergeant Peter Montanino noticed them.

Recalling an email he received the day before of a photo of a suspect and the phrase “trying to ID suspect #2 in this photo,” Montanino compared Walker and Hopkins and found they were “medium to dark skin toned black males. They were thin build. Both were wearing glasses at the time. One had little longer length, longer than shoulder length hair. The other one had what appeared to be short hair.... Both had facial hair. Both appeared to have goatees.”

Montanino called his subordinates, officers Owen Conway and Martin Furciniti, and asked them to stop and ID the pedestrians. The pair pulled up in front of Walker and Hopkins while Montanino pulled up behind them. The officers ordered them to stop and produce identification, which was used to run ...

Sixth Circuit Vacates First Step Act 
Resentencing Denial Where Court Failed 
to Consider Post-Sentencing Conduct


by Anthony Accurso

In a decision filed on August 26, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Kentucky’s order denying a prisoner’s motion for sentence reduction under the First Step Act because the court failed to consider his post-sentencing good-conduct argument. 

Shawn Williams pleaded guilty in 2005 to possession with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a). The Government filed an enhancement under § 851 because of his prior felony drug conviction, raising his mandatory minimum to 20 years.

Based on a total offense level of 34 and a criminal history category of VI, his Guidelines range was 262 to 327 months. He was sentenced to 262 months’ imprisonment to be followed by 10 years of supervision.

In 2018, the passage of the First Step Act modified his effective statutory mandatory minimum sentence to 10 years, so Williams asked to be resentenced. In his motion, he argued, among other things, that his conduct while in prison warranted a reduction. Williams highlighted that he passed every drug test he had taken, held the same prison job ...

Federal Judges Beginning to Reject Geofence Warrants

Such warrants are sometimes also called “reverse warrants” because they are like a normal warrant but in reverse. Normally, law enforcement officers (“LEOs”) have a suspect or specific details about a suspect, and they have some evidence that person committed a crime. They present this to a magistrate judge who then authorizes them to look for more conclusive evidence in very specific places.

In contrast, geofence warrants work backward from where a crime is committed, and LEOs then obtain an obscene amount of information on thousands of people in the hope they can sort potential suspects from that data. They then investigate those leads and apply for a normal warrant when they have amassed enough details to narrow it down to the person(s) they believe committed the crime.

Magistrate Judge David M. Weisman was called upon to authorize such a warrant after some pharmaceuticals were stolen. The government applied to obtain data gathered by ...



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