OCDW 11.23.15



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).




No new cases.




United States v. Jonathan Matthew Madrid, No. 14-2159 (10th Cir., November 2, 2015) (Published) (Tymkovich, C.J., Lucero & Matheson): Federal Sentencing Guidelines (Crime of Violence): The issue in this appeal was whether a prior conviction for statutory rape in Texas qualifies as a crime of violence. The panel held that it does not.

United States v. Thomas R. Rodella, No. 15-2023 (10th Cir., November 4, 2015) (Published) (Briscoe, Ebel & Bacharach): Sufficiency; Burks Notice and Bad Acts: A former Sheriff in New Mexico was convicted of depriving a person of his civil rights (unreasonable searches and seizures) and was sentenced to 121 months for what appears to be an extreme road rage incident. The panel affirmed over his claims relating to: 1) sufficiency of the evidence; 2) failure to instruct on de minimis injury; 3) admission of 404(b) evidence regarding Rodella’s prior incidents; 4) prosecutorial misconduct in using the 404(b) evidence for an improper purpose; and 5) cumulative error.

United States v. Jesus Ibarra-Diaz, No. 13-3130 (10th Cir., November 9, 2015) (Published) (Hartz, O’Brien & Holmes): Waiver (Appellate Issues): Drug distribution conviction affirmed over claims relating to: 1) admission of testimonial hearsay; 2) admission of inflammatory testimony by a Government witness; 3) duplicitous indictment; and 4) sufficiency of the evidence. NOTE: The first three of these claims were not only not objected to at trial, plain error review was not pled on appeal. This resulted in a long footnote (no. 3) that discusses whether such claims are actually forfeited and the law governing these waiver questions (it seems that the Court of Appeals has discretion whether to even address them).

United States v. Kelvin Hill, No. 14-2206 (10th Cir., November 9, 2015) (Published) (Briscoe, Murphy & Gorsuch): Search and Seizure (Abandoned Property): In this drug case, a DEA agent conducting interdiction on a train snooped around in the luggage compartment, spotted a suitcase with no name tag, took it out to the passenger area and asked the passengers if it belonged to anyone. All passengers denied ownership, which prompted the Agent go deem it abandoned property (and, of course, it contained drugs). The question on appeal was whether the actions of the Agent in removing the suitcase from the luggage area and carrying it through the coach as he questioned passengers constituted a seizure of the bag. Amazingly, the panel held that the actions of the Agent did constitute a meaningful interference with Hill’s possessory interest in the suitcase. Thus, the denial of the motion to suppress is reversed.




“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. Christopher J. Harris, No. 14-2269 (8th Cir., July 21, 2015): Supervised Release: In this drug case, the district court imposed a “novel” condition of supervised release that Harris, who had fathered ten children out of wedlock with seven different women, that Harris could not have unprotected sex without the approval of the probation officer. The panel invalidated this condition.

United States v. Jose Miguel Medina-Mora, No. 14-1243 (7th Cir., August 5, 2015): Concurrent/Consecutive Sentences: This case involves the situation where the district court announces sentence orally which includes a statement that the federal sentence will run concurrently with an unexpired state sentence, but the concurrent nature of the sentence is omitted from the written judgment. BOP, of course, treated it as consecutive. In this appeal, the panel reversed, applying the rule that an unambiguous oral pronouncement of sentence controls.

Oscar C. Thomas v. Marc Clements, No. 14-2539 (7th Cir., June 16, 2015): IAC: Denial of habeas relief is reversed based on IAC where counsel was ineffective for failing to consult with a forensic expert regarding the cause of death (strangulation intentionally, or during rough sex?)

Clifton A. Gabaree, Jr., v. Troy Steele, Warden, No. 13-3486 (8th Cir., July 8, 2015): IAC: Partial grant of habeas relief in a child sex abuse case is affirmed when counsel failed to object to expert testimony on opinion that would have been excluded.

Edwin Arvelo v. Secretary, Florida Department of Corrections, No. 14-11441 (11th Cir., June 10, 2015): Interrogations (Fifth Amendment): Denial of habeas relief is reversed based on a violation of Miranda.




CINDY VIOL, OKC, and DAVID HAGGERTY, and investigator TERRY TYLER, geared up in Jackson County representing a 20-year-old client charged with two counts of First Degree Rape by Instrumentation involving minor relatives which resulted in an emotionally charged gallery. Cindy, who had just finished a week-long trial, jumped into this one after the client rejected a plea offer of a 5-year suspended sentence (with 15 years of registration). Cindy expertly exposed police tactics that bullied and manipulated witnesses, and the jury took less than two hours before returning verdicts of not guilty on all counts. Terrific work, Cindy, David, and Terry!

JOSH EDWARDS & ROB NEAL, won a jury trial last week in Pontotoc County involving charges of child abuse and malicious injury to property, but which turned out to be a bizarre concoction of charges stemming from a confrontation between an oil pumper and a landowner over opened cattle gates. The jury bought none of it, returning not guilty verdicts in under 20 minutes. Great job, Josh & Rob!

WINSTON CONNOR, II, Miami, recently convinced Special Judge Rebecca Gore that the evidence was insufficient to bind over his clients for trial, two undersheriffs charged with covering up information in connection with a burglary. The State announced intent to appeal, and a hearing was held before District Judge Robert Haney, who also ruled last week that the order dismissing the case must be sustained. So, that is two down, one to go for Winston, since the State announced that it will continue to the OCCA. Good luck, Winston!




NEW COURT CLERK: Dana Blevins has been appointed as the new Court Clerk in Stephens County; also, the Court Clerk in Muskogee is concerned about security in the office; and the Court Clerk in Kay County may be in hot water for doing a “special favor” for an employee by keeping the courthouse open after hours for a weeding (sounds like much ado about nothing to me).

FBI INTESTIGATING SHERIFF: During a detention hearing involving the son of the Love County Sheriff, it was revealed that the Sheriff is under investigation amid allegations that he may have been involved in the illegal drug activities of his son.

PUBLIC DRUNK: Officials in Tulsa are looking into alternative programs for citizens arrested for public intoxication.

JUVENILE JUSTICE CLASH: Canadian County Commissioners and Judge Bob Hughey continue to clash over funding for a new juvenile justice center.

ATTORNEY INJURED: OKC attorney Gary Rife was injured last week in a car wreck in Norman.

PROTESTS: Protesters disrupted testimony briefly during the trial of a former police officer accused of sex crimes and on trial in OKC.

FEDERAL COURT MUSEUM: A new museum has opened in downtown OKC featuring aspects of the federal judicial system.

ANTI-SMURFING: Law enforcement officials in Kay County have launched an “anti-smurfing” campaign which targets the practice of purchasing cold/allergy medicine containing pseudoephedrine for re-sale to meth-makers.

FRIVOLOUS LITIGATION REGISTRY: OSCN has added a list of names of folks on the Registry of Frivolous or Malicious Appeals (mostly prisoners, it appears).

K-NINE TRAINING: DOC has placed new emphasis on using K-9 search teams to control the inflow of contraband.

TULSA BUCK TREND: Tulsa County has bucked a trend of incarcerating women, finding non-incarceration options for many prison-bound women.




A drunken O.U. fan was arrested after the big game in Waco last week after he mistakenly broke into the courthouse—thinking it was the Hilton hotel; a woman in Cherokee County has lodged a complaint to the Sheriff charging her husband with bigamy; a lottery game in Oklahoma may have been rigged back in 2011; a 7-year-old-girl told a DHS worker that her father was growing strawberries in his close—turned out to not be strawberries; a stolen police cruiser was eventually recovered, along with the 11-year-old culprit who stole it; a brazen vandal pulled up in a car, got out, and proceeded to bash some windows out of a police cruiser in Enid.




FRIDAY, DECEMBER 11, 2015: The Criminal Law Hodgepodge XXVI will take place at the Tulsa County Bar Association. The moderators will be Paul Brunton and Shena Burgess. The seminar is good for 6 hours of CLE (including one hour of ethics). For more information contact Paul Brunton at 918.599.8600 or paul@paulbruntonlaw.com.



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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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