OCDW 09.07.15



James L. Hankins, Publisher


(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).




David Glen Heard v. State, No. F-2014-478 (Okl.Cr., September 3, 2015) (unpublished): Statutory Construction (Vagueness): Heard was convicted in Tulsa County (the Hon. William J. Musseman, Jr., presiding) by jury of two counts of Lewd Molestation, although the facts are a little odd in that Heard was convicted of creeping around Wal-Mart and “looking upon” girls who were dressing and trying on shoes (Heard was also on probation for sex crimes as well). The Court affirmed, but the opinion is notable because Heard defended primarily on the basis that the statute was unconstitutionally vague. The Court found the statute was not unconstitutional. NOTE: Despite the creepy nature of his actions, there is a significant challenge here when the accused can be convicted of this sex crime for “looking” upon the body of a clothed child in a public place. Heard did not help himself any by being on probation for a sex crime and also admitting his intent when interviewed.




United States v. Pedro Garcia, No. 14-3006 (10th Cir., July 14, 2015) (Published) (Hartz, Tymkovich & Phillips): RICO & VICAR; Prosecutorial Misconduct (Brady); Hearsay (Gang Evidence): RICO convictions affirmed over claims relating to: 1) Prosecutorial misconduct (failing to disclose promises made to a cooperating witness; the Government did fail to disclose, but held not material); 2) RICO/VICAR did not impinge interstate commerce; 3) hearsay/overview testimony from a gang expert (error, but harmless). NOTE: Related to the Brady claim was a claim under Napue that the Government presented false testimony when its witnesses failed to disclose the promises of leniency. The panel noted that the legal analysis for “materiality” is different for these claims.

Kimberly D. Sharp v. Karen Rholing, Warden, No. 14-3090 (10th Cir., July 15, 2015) (Published) (Hartz, Gorsuch & Matheson): Interrogations (Fifth Amendment); Habeas Corpus: Denial of habeas relief is reversed when a homeless mother of small children was interrogated and promised leniency (no jail time). Her statements were not voluntary. NOTE: This opinion is notable because the panel found that the fact-finding by the state appellate court was erroneous on this issue.

United States v. John Henry Snyder, II, No. 14-6023 (10th Cir., July 20, 2015) (Published) (Briscoe, C.J., Tymkovich & Moritz) (W.D. Okla., Hon. Stephen P. Friot): Search and Seizure (Traffic Stops); Federal Sentencing Guidelines (ACCA): Probable cause for search of vehicle existed because of the odor of burnt marijuana, but the Supreme Court’s decision in Johnson v. United States (the ACCA residual clause is void for vagueness) compels re-sentencing.

United States v. Jeffrey Charles Zander, No. 13-4174 (10th Cir., July 24, 2015) (Published) (Matheson, McKay & Moritz): Sufficiency (Mail/Wire Fraud); Federal Sentencing Guidelines (Loss Calculation): Convictions for mail and wire fraud are affirmed over claims relating to: 1) sufficiency of the evidence of mail fraud as too attenuated from the crime; 2) sufficiency of the evidence of wire fraud; 3) improper loss calculation (remanded for re-sentencing).

United States v. David Louis Craig, No. 14-3187 (10th Cir., July 27, 2015) (Published) (Kelly, Tymkovich & McHugh): Allocution; Standard of Review (Allocution): In this revocation of supervised release case, Craig argued that he was denied his right to allocate before sentencing because the district court did not ask him directly if he had anything to say prior to sentencing. The panel denied this claim, dealing with the appropriate standard of review (plain error) and other aspects of allocution under the federal rules.




“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.




United States v. Kurt Mix, No. 14-30837 (5th Cir., June 30, 2015): Jurors: Mix was convicted by a jury of obstruction of justice for deleting a text message in the Deepwater Horizon accident, but when a juror overheard elevator talk that other BP employees were being prosecuted and told other jurors about it, the district court granted a new trial on the basis of exposure of the jury to extrinsic evidence. The panel affirmed on appeal.

United States v. Arturo Esparza, No. 13-50033 (9th Cir., June 29, 2015): Hearsay; Confrontation and Cross-Examination: A car filled with drugs and the question is who owned the car. The registered owner was a woman named Diana Hernandez, but she made a statement to the DMV that she had sold the car to Esparza. The statement was introduced as hearsay, which the panel held was reversible error.

United States v. Autry Lee Jones, No. 13-50475 (5th Cir., August 4, 2015): Habeas Corpus (Second/Successive): A sentence reduction under 18 U.S.C. 3582 does not constitute a new judgment for purposes of habeas law on successive petitions.




JARROD STEVENSON, OKC, represented a client who was a four-time convicted felon and drug addict, charged with shooting two people. But, that did not stop the jury from finding that the client acted in self-defense in Kay County. This is another nice jury trial win for Jarrod!

GREG CAMP, Enid, secured a not guilty jury verdict for his client in Garfield County, who was charged initially with first degree murder, but was tried for manslaughter. Self-defense was, again, the order of the day and the jury found the client not guilty. Nice work, Greg!

KEITH NEDWICK, Norman, represented a client in Oklahoma City municipal court who had the temerity to argue with a fireman who ordered the client make his property accessible to firemen pursuant to a call that reported a fire in the vicinity. The client said hell no, demanded that government fire and police officers stay off his property, and the jury agreed! Nice job, Keith!

MICHAEL JOHNSON, OKC, won an acquittal for a former sheriff lieutenant in Oklahoma County who was charged in the death of an inmate. Nice win, Michael!

THOMAS MORTENSEN, Tulsa, completed the trifecta of self-defense jury trial wins recently in a case out of Tulsa where his client was charged in connection with a stabbing death. The jury said not guilty of murder in the first degree. Terrific work, Thomas!




NEW COURT ADMINISTRATOR: The City of Oklahoma City has a new municipal courts administrator. LaShawn Thompson replaces Stacey Davis, who resigned in June after being placed on leave pending investigation into “personnel matters.”

FORFEITURE: The link goes to an interesting article detailing forfeitures in Oklahoma, with a nifty breakdown of forfeitures vs. criminal charges in some counties.

ROTTEN DA: The new DA in Brooklyn is taking a look at some of the cases prosecuted by his predecessor and is finding malfeasance, such as the case cited in the article where prosecutors asserted that their key witness came forth voluntarily, when in reality the witness was forced to do so via a material witness warrant.

EXECUTION: The state of Missouri executed 50-year-old Roderick Nunley last week for the kidnapping, rape and murder of a 15-year-old girl. Nunley had been on death row for 25 years, and a co-defendant has already been executed. Also, in Ohio, the state has “two dozen condemned killers with firm execution dates” but no lethal drugs with which to carry them out.

PRISONER RELEASED: A man who served nine years in prison in Connecticut for murder has been freed, despite having confessed, when prosecutors agreed to overturn his conviction, citing that he was a teenager with a low IQ who may have been coerced.

NEW SHERIFF: Matt Boley was sworn in recently as the new Sheriff of Texas County; also, Thomas Anderson has been hired as the new Chief of Police in Miami.

CONTEMPT: Two co-defendants were held in contempt of court by district judge Lori Walkley in Cleveland County during a murder trial when they refused to testify.

TERRELL RELEASED: Former state representative Randy Terrell was released from prison recently, but still has to wear an ankle monitor.

BODY CAMS: The Oklahoma City city council has adopted policies on police body cameras.

POLICE JOBS: The city of Broken Arrow is having difficulty filling the 10 vacant jobs for police officers.



Man seeks assistance from police when his car breaks down…who promptly discover that his car is filled with stolen goods; when the accused chooses to commit a burglary while completely naked, local media will certainly refer to him as the Birthday Suit Burglar; repo man busted for towing a repo while high; the service at Speedy Gonzalez in Tulsa was not speedy, so a patron hit an employee with a beer bottle; a metro man has been accused of poisoning by mercury—do not see that charge too often; murder most foul over a pair of sunglasses; the first rule of armed robbery is to make sure your tires are in good condition so you do not get a flat during the getaway.



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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.

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