(with special thanks to Mark Hoover, OIDS, for contributing regularly)
“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).
Kalub Lebryon Lee Williams v. State, No. C-2015-1054 (Okl.Cr., July 28, 2016) (unpublished): Guilty Pleas: Williams was charged with Rape in Washington County, and he entered a plea before the Hon. Curtis L. DeLapp, which called for a 25-year sentence (15 in, and 10 out). Williams filed a pro se motion to withdraw his plea, and requesting the appointment of new counsel (which Judge DeLapp did, a rarity in these cases). The denial of his motion to withdraw his plea is affirmed, but I included this opinion because under the state statute (21 O.S. 1115), the death penalty is still listed as a punishment for rape. However, the Supreme Court has invalidated that option, so it is technically listed in the statute, but unconstitutional. This arises in rape cases where the range of punishment has to be written on the plea form.
United States v. James Black, No. 15-3111 (10th Cir., July 25, 2016) (Published) (Kelly, Gorsuch & Phillips): Speedy Trial: Black was convicted of drug conspiracy and substantive drug crimes and sentenced to 30 years. Black argued on appeal a denial of speed trial (under the Sixth Amendment) due to the 23-month delay in bringing him to trial in a large, multi-defendant drug case that involved trying him on the fifth superseding indictment. The panel rejected his speedy trial claim on the basis that he suffered no prejudice and failed to promptly and forcefully assert his speedy trial right. However, the panel held that the district court plainly erred in calculating the offense level by treating the drug conspiracy conviction as punishable by life imprisonment, and thus the Guidelines range was skewed (a fact conceded by the Government), and remanded for re-sentencing.
UNITED STATES SUPREME COURT
“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).
No new cases.
OTHER CASES OF NOTE
United States v. Victor Eduardo Hernandez-Montes, No. 15-40544 (5th Cir., July 25, 2016): Federal Sentencing Guidelines (Crime of Violence): The panel held that a Florida conviction of attempted second-degree murder cannot be the basis of a sixteen-level crime-of-violence sentence enhancement. Remanded for re-sentencing.
Maiker Vazquez v. Secretary, Florida Department of Corrections, No. 15-10321 (11th Cir., July 1, 2016) (Publish): Habeas Corpus (Exhaustion): Denial of a 2254 petition is reversed because, although the district court found sua sponte that Vazquez failed to exhaust his state remedies, the panel found that the State waived the exhaustion requirement.
United States v. Neftali Alvarez-Nunez, No. 15-2127 (1st Cir., July 8, 2016): Federal Sentencing Guidelines (Reasonableness): Alvarez-Nunez pled guilty to possession of firearm by a CDS user and possession of a machinegun. The PSR sought enhancement based upon lyrics of songs and music videos (of drug use and violence). The panel held that reliance upon this information rendered the sentence unreasonable on First Amendment grounds.
United States v. Michael Bouchard, No. 14-4156-cr (2nd Cir., July 7, 2016): Statutory Construction: Conviction for mortgage fraud by attorney by filing a false statement with a federally insured financial institution is reversed because the statements were made to a company that was not federally insured (although its parent company was).
INMATE TRANSPORT: Private prisons are nothing new to our state, but Oklahoma has recently employed a private company to transport prisoners.
PSEUDO: It has been reported that 20,000 pseudoephedrine sales have been blocked in Oklahoma, but it is unclear if all of them were for illicit purposes. In Mayes County, authorities tracked the pseudoephedrine sales of the former Police Chief of the town of Big Cabin and arrested him and his wife for operating a meth lab.
NEW JUDGES: OSCN has profiled three new judges: District Judge Michele McElwee (Oklahoma County); Special Judge Kevin C. McCray (Oklahoma County); and Special Judge Owen T. Evans (Tulsa and Pawnee Counties).
INVESTIGATOR OF THE YEAR: Tim Turner (Pittsburg County) has been named the Investigator of the Year by the District Attorney Association; also, Lori McDougal (Payne and Logan Counties) has been named the Outstanding Victim Witness Coordinator of the Year.
RIP: E. Melvin Porter, Oklahoma’s first black state senator and prominent Oklahoma County lawyer, passed away last Tuesday at the age of 86.
BIG BUST: Drug dog Xena helped police nab a smuggler with 200 lbs. of marijuana.
LOVE COUNTY SHERIFF: The FBI is apparently investigating the ever-more-sordid allegations against Love County Sheriff Marion “Joe” Russell; meanwhile in Woods County, Sheriff Rudy Briggs has been inducted into the Sheriff’s Hall of Fame; and Sequoyah County Sheriff Ron Lockhart has been named President of the Oklahoma Sheriff Association.
NEW WARDEN: Terry Royal, from Florida, has been named the new warden at OSP.
OJC PRESIDENT: Associate District Judge Brad Benson of Frederick has been named President of the Oklahoma Judicial Conference.
FORGERY: A man in McClain County has been charged with pilfering a court minute, filling it out, and then forging the signature of a judge.
POLICE STOPS: A news station in Oklahoma went through some dos-and-don’ts of police stops.
COSTS: Canadian County Commissioners had to cough up more money to pay for out-of-county inmates at the jail.
OFFICER TRAINING: The Sand Springs Police Department trains officers in “fair and impartial policing” in the wake of national racial unrest.
50 YEARS: Monday, August 1, 2016, marks the 50 year anniversary of the shootings in Austin, Texas, when Charles J. Whitman, then-25-years-old, killed his mother and wife before climbing the clock tower and opening fire on persons below, killing 16 and wounding 30 more.
FACE TATTOO: A defendant in Las Vegas had his face covered in multiple tattoos which created a problem for jurors because most said that they could not be fair to the guy. This is a problem that has become increasingly common in the last few years because of the popularity of tattoos, and face tattoos are creeping into the culture. The judge addressed the problem by having a cosmetologist cover the tattoos with makeup for the trial.
THE SQUATTER: An Oklahoma City man squatting in an abandoned house got really hot one day, so he stripped naked and stood outside on the front porch. He was arrested when police rejected his “trying to cool off” defense. A neighbor stated, “It’s not an awesome look for the neighborhood, but what are you gonna do?
AUGUST 11, 2016, at NOON: The Oklahoma County Criminal Defense Lawyers Association will host its weekly luncheon and one-hour CLE with speaker and trial attorney Joi McClendon on the topic of overcoming confessions. The presentation starts at 11:30 a.m. with lunch, followed by the talk at the Norick Library, Fourth Floor, downtown OKC. RSVP with Billy Coyle or Jean at 405.232.1988.
SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at email@example.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.
ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.
COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2016 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!
If you have received this e-mail in error, or no longer wish to receive the weekly newsletter, simply reply to the message, or send a new message, to firstname.lastname@example.org and type in “UNSUBSCRIBE” in the subject line, along with your name and e-mail address and you will be taken off the mailing list.