OCDW 12.07.15



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).




No new cases.




United States v. Walter R. Flaugher, No. 14-3206 (10th Cir., November 13, 2015) (Published) (Kelly, Seymour & Matheson): Supervised Release; Search and Seizure (Probation and Parole): Flaugher stipulated to violated supervised release by using meth, and when he was revoked the district court imposed a condition of warrantless search by probation. The panel affirmed this condition, construing the statute to allow this even though Flaugher was not a convicted sex offender.

United States v. Laura Anjennette Wetzel-Sanders, No. 14-3254 (10th Cir., November 16, 2015) (Published) (Kelly, Seymour & Matheson): Habeas Corpus (Second/Successive): Denial of a joint 2255 motion to vacate a sentence is affirmed because the motion was successive and thus required authorization by the Court of Appeals.

United States v. Joseph V. Mulay, No. 14-3248 (10th Cir., November 16, 2015) (Published) (Kelly, Seymour & Matheson): Habeas Corpus (COA): The Government and Mulay filed a joint motion to vacate his sentence under 2255 based upon a legal error. The district court denied relief, but granted a COA. The panel vacated and remanded to the district court to identify a constitutional issue in the COA grant.

United States v. Delray Quiver, No. 14-8077 (10th Cir., November 17, 2015) (Published) (Hartz, O’Brien & Phillips): Federal Sentencing Guidelines (Use of a Dangerous Weapon): In this case involving an assault on a federal officer, a four-level enhancement for “use” of a “dangerous weapon” involving the officer’s Taser is affirmed.




“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. William R. Cosme, No. 14-1625-cr (2nd Cir., August 10, 2015): Search and Seizure (Warrantless): In this wire fraud case, the Government seized assets (cars and bank accounts), and the district court allowed the Government to hold the seized property until the conclusion of the criminal case. The panel reversed, holding that there were no extraordinary circumstances justifying indefinite seizure of the property.

United States v. Rosario Aurelio Montoya-Gaxiola, No. 14-10255 (9th Cir., August 10, 2015): Jury Instructions (Scienter): Firearms conviction for possession of a sawed-off shotgun is reversed because the district court failed to instruct on the mens rea of the charge.

United States v. Steven Frank Boitano, No. 14-10139 (9th Cir., August 12, 2015): Taxes; Jury Instructions (False Tax Returns): Conviction for filing false tax returns reversed because “filing” is an element of the crime which was not proven.




ED BLAU and BRETT BEHENNA, OKC, scored a nice jury trial acquittal in federal court last week (W.D. Okla.) for an investment banker accused of paying for sex with a 14-year-old girl. Nice work, Ed and Brett!

SHANNON MCMURRAY, Tulsa, represented a Youthful Offender on a forcible oral sodomy charge and was able to secure a dismissal by Judge Pickerell on the basis of statutory construction. Nice work, Shannon!




CRIME FIGHTING: Oklahoma County Sheriff John Whetsel believes that early childhood development is a key to fighting crime.

CORRUPTION: The Alabama Justice Project is reporting that the district attorney has “covered up” an internal affairs investigation into the Dothan Police Department that indicated police planted drugs on young black males for years.

LETTER TO THE EDITOR: The link goes to a letter to the editor in Norman commenting on the need for impartiality of state judges, prompted by the participation of District Judge Thad Balkman in something called the Norman Citizens’ Police Academy.

MACK MARTIN: Oklahoma City attorney Mack Martin, from Lawton, gave a lecture recently at Cameron University focusing on social justice and criminal defense.

METH IS BACK: This article details how cheap meth is making a comeback, traveling across I-40.

DANGEROUS DRIVING: According to a new report, Oklahoma is the fifth most dangerous State in which to drive.

ATTEMPTED ESCAPE: An inmate has been arrested in Rogers County for attempting to escape “through a hole in the shower area.”

DOC DIRECTOR OUT: DOC Director Robert Patton has resigned, this on the heels of the resignation of OSP Warden Anita Trammell. Gov. Fallin had refused to back Patton after the botched executions, and Attorney General Scott Pruitt is leading a grand jury investigation into the executions.

TULSA COUNTY PROBLEMS: A staff member at the Sheriff’s Office has been disciplined and a program that allowed inmates to work at the jail has been disbanded after an unsupervised inmate stole drugs from a storage location.



Police in McAlester are investigating, quite thoroughly, the appearance of nude photos on a computer at a local public technology education center; a man was arrested last week in Tulsa when he drove a Buick through a gate at a police station, crashed into police cars, accessed a police cruiser and then managed to crash that one into other cars as well; a donkey on the loose in Norman has been caught (check out the pic); a robber in Tulsa complicated matters at a Walgreens when he paid for his items; bricks of cocaine were found in a plane being serviced in Tulsa; a man in Tahlequah was arrested last week for “befouling a dumpster;” an Ada man has been arrested for fighting with a police officer—at drug court.




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.



SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.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: ©2005-2015 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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