OCDW 10.12.15



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).




Herman Tracy Clark v. Jim Farris, Warden, 2015 OK 62 (October 5, 2015): Habeas Corpus (State Cases): Clark sought state habeas relief in the district court challenging his judgment and sentence in a criminal proceedings. In this opinion, the Supreme Court dismissed the appeal on the basis that its civil jurisdiction does not extend to these situations.

Gerhart v. State, 2015 OK CR 12 (October 7, 2015): First Amendment: Solid opinion where Gerhart sent an e-mail to the office of State Senator Cliff Branan to the effect that Branan should “get that bill heard” or else he would regret not doing it. The State treated this as criminal blackmail, but the Court reversed on the basis that the communication was protected free speech under the First Amendment. NOTE: Judges Smith, P.J., and Johnson dissented, which is somewhat alarming since the e-mail in question did not really present a close question in my mind that it was protected speech.

Cory James Leon Whiteside v. State, No. C-2014-854 (Okl.Cr., October 6, 2015) (unpublished): Guilty Pleas; Waiver (Right to Counsel): Whiteside proceeded pro se and pled guilty to Domestic Assault and Battery in the Presence of a Minor and also Domestic Abuse in Washita County before the Hon. Christopher S. Kelly. The OCCA granted certiorari because Whiteside did not knowingly and voluntarily waive his right to counsel.




United States v. Tracey Richard Moore, No. 14-6014 (10th Cir., July 30, 2015) (Published) (W.D. Okla., Hon. Joe Heaton) (Briscoe, C.J., Tymovich & Moritz): Search and Seizure (Traffic Stops): Moore pled guilty to being a felon in possession of ammunition, but contested the traffic stop and subsequent search based upon a dog sniff (the dog actually jumped inside his vehicle). The panel affirmed.

United States v. Omero Cordova, No. 14-6039 (10th Cir., July 6, 2015) (Published) (W.D. Okla., Hon. Joe Heaton) (Matheson, McKay & Moritz): Search and Seizure (Search Warrants; Sufficiency; Good Faith): Improbable opinion out of the circuit where the panel held that a search warrant affidavit “contained so few facts implicating either Cordova or his current home that a reasonable officer could not have relief on the warrant in good faith.”

United States v. Belisario Domingo Martinez-Torres, No. 14-2084 (10th Cir., July 31, 2015) (Published) (Hartz, Gorsuch & Moritz): Supervised Release: The accused pled guilty to possession with intent to distribute 50 kilograms of marijuana. In this opinion, the panel vacated three conditions of supervised release: 1) refrain from using alcohol; 2) shall undergo a risk assessment and/or psychosexual evaluation for sex offender treatment with polygraph testing (there was evidence of prior sexual assault); and 3) prohibition for reviewing sexually explicit material.

United States v. Brandon Richter, No. 13-1316 (10th Cir., July 31, 2015) (Published) (Kelly, Lucero & McHugh): Experts: Richter and a co-defendant were convicted of multiple counts of fraud concerning a scheme to dispose of electronic waste (old computers, monitors, etc.). Some of the counts are reversed in this opinion based upon the testimony of a witness who testified that CRTs that had been removed from their housing were waste because they could not again be used for their original intended purpose without processing. The witness was not proffered as an expert, but provided expert testimony. The panel found this was prejudicial error.

United States v. Leslie Lyle Camick, No. 14-3089 (10th Cir., July 31, 2015) (Published) (Kelly, Tymkovich & McHugh): Sufficiency; Restitution; Obstruction of Justice: Convictions for mail fraud, wire fraud, material false statement to the Patent Office, and aggravated identity theft are reversed for insufficient evidence. Also, a restitution award is reversed in part because the Government failed to put forward evidence showing that Camick’s actions of conviction caused the alleged losses to the victim. NOTE: Camick was also convicted of obstruction of justice for filing a civil lawsuit against the victim (ultimately unsuccessful) and Judge Kelly dissented to the affirmance of this count, finding that no rational juror could have found beyond a reasonable doubt that Camick had intent to retaliate.




“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).


Maryland v. James Kulbicki, No. 14-848 (U.S., October 5, 2015) (per curiam): IAC: In a 1995 trial for murder, an FBI agent testified to ballistics matches using Comparative Bullet Lead Analysis (CBLA), which was not attacked by defense counsel. Years later, CBLA was discredited as scientifically untrustworthy, so Kulbicki alleged IAC for defense counsel’s failure to attack this junk science. However, in this opinion, the Court reversed a grant of relief, holding that defense counsel were not constitutionally required to predict the demise of CBLA, especially when such science was widely accepted in the scientific community in 1995.




United States v. Karenza S. Pickering, No. 14-3730 (7th Cir., July 23, 2015): Contempt: Pickering, a female bank employee who was having a difficult pregnancy and other family problems, received a summons for jury duty but did not show up. The district court instructed the Government to institute contempt proceedings, at which Pickering was the only witness. The district court found her guilty and assessed a fine of $250.00, but the panel reversed on the basis of insufficient evidence of a willful violation. NOTE: For some odd reason, the district court insisted on addressing Pickering by her first name as she testified. The panel admonished the trial court that such conduct was unbecoming of a judge.

United States v. Louis Ruggiero, No. 13-14773 (11th Cir., June 30, 2015) (Published): Scienter; Child Porn: Ruggiero challenged the federal statute criminalizing the production of child pornography as unconstitutional as applied to him because the statute does not require proof that the accused knew that the victim was a minor. The panel agreed that there is no such requirement, but disagreed that this rendered the conviction invalid. This opinion deals with several challenges, but rejects them all, resulting in a bottom-line conclusion that these offenses seem to be strict liability. NOTE: Ruggiero also asserted a right to present a defense based upon a reasonable mistake regarding the age of the victim, but the panel rejected this argument as well, holding that knowledge of age is not an element of the offense and evidence regarding it is therefore irrelevant.

United States v. Paul Davis, Jr., No. 14-1124 (7th Cir., July 13, 2015) (en banc): Discovery; Vindictive or Selective Prosecution: This appeal involves the Criminal Appeals Act which allows the Government to appeal some interlocutory rulings. Here, the district court dismissed an indictment in order to facilitate an appeal of a discovery matter. First, the panel held that dismissal without prejudice does nevertheless grant jurisdiction to the appellate court to hear the appeal. Second, the discovery order allowed the defense to discovery evidence about racism in prosecutorial practice and criteria since nearly all of the stash house prosecutions involved people of color. The panel vacated this discovery order as well. It seems that prosecutorial discretion is virtually unreviewable in these circumstances.

United States v. Robert Lewhim Leo, Jr., No. 14-2262 (7th Cir., July 2, 2015): Search and Seizure (Pat Down): Police approached Leo based upon a 911 call and searched his person, including a backpack in which a gun was found. The panel held that the search was illegal and beyond the scope of a Terry pat down.




KEVIN D. ADAMS, Tulsa, defended Albert Gerhart before a jury after Gerhart was charged with blackmail when he sent an e-mail to State Senator Cliff Branan. The jury found Gerhart guilty, but when Kevin appealed, the OCCA found the conduct protected under the First Amendment and reversed. Nice job, Kevin!

JEFF CLARK, Durant, won a jury trial for a student at Southeastern Oklahoma State University accused of rape in a dormitory room. Nineteen-year-old Curtis Patrick Bell of Durant walked out of the courtroom, and it should be noted that he declined (wisely) to make a statement to the police prior to trial. Good job, Jeff!


District Attorney vs. United States Attorney


The case of a “former Edmond missionary” Matthew Lane Durham, 21, who was convicted in federal court recently of several counts of sexual assault against children in Kenya, Africa, has taken a dramatic turn in post-trial proceedings. Assistant U.S. Attorney Robert Don Gifford, II, has been targeted for withholding key medical information from the defense—by none other than Oklahoma County District Attorney David Prater.

Lead defense attorney Stephen Jones has filed several post-trial motions, including THIS supplement to the Rule 33 motion for new trial, which outlines the issue, and also includes the memoranda upon which the motion for new trial is based. Kudos for Mr. Prater for vindicating the Brady rights of the accused, and publicly against a federal prosecutor, no less.




EXECUTION SNAFU: According to The Oklahoman, DOC used the wrong drug during the execution of Charles Warner last January.

HARVARD vs. INMATES: A debate team composed of violent prison inmates from Eastern Correctional Facility in New York has apparently crushed the undergrad debate team of Harvard students.

CHIEF REINSTATED: The Police Chief in Medicine Park was reinstated after a contentious public meeting, at which District Judge Emmit Tayloe (a resident of Medicine Park) voiced his opinion. The Chief had been placed on administrative leave following an allegation of physical assault on a town employee. Also, the Police Chief in Pauls Valley was injured by a knife attack following an arrest of a former city employee.

JUDICIAL APPLICANTS: Five persons have applied for the judicial vacancy in Pottawatomie County.

FORFEITURE STATS: It appears that most of the cash seized by police in forfeitures come from African-Americans and Hispanics.

OFFICER PROMOTED: Hard working officer James Willyard has been promoted to Assistant Chief at the Pryor Police Department.

DRUG BUST: Arrests in Kay County totaled 27 over the weekend.



An inmate at an Altus work center took a fire drill to the extreme—by escaping; a DUI suspect in Owasso claimed to be a surgeon, and threatened arresting officers by saying, “wait ’til I get you under my knife”; the wife of State Senator Kyle Loveless was arrested recently for DUS and refusing to roll down her window and blaring music to drown out the officers, conduct attributed by Sen. Loveless to post-partum depression; a Muskogee man attempted to assault another person—with a barbecue grill; police in Chickasha are looking for a possum that caused a car wreck—and it must have been a huge possum.



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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.

COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2015 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!


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