OCDW 02.01.16



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).




I.H. v. State, No. J-2015-904 (Okl.Cr., January 29, 2016) (unpublished): Juveniles and Y/O: In this Youthful Offender case out of Tulsa County (the Hon. William J. Musseman, presiding), the trial court granted the motion of the State to sentence the juvenile to DOC, and the juvenile appealed. In this opinion, the Court affirmed, but I included it because contains some decent discussion of the law governing these issues.




James Chandler Ryder v. Maurice Warrior, No. 13-7073 (10th Cir., January 11, 2016) (Published) (Tymkovich, C.J., Phillips & McHugh) (E.D. Okla., the Hon. James H. Payne): Insanity and Competency; Habeas Corpus (Capital Habeas Cases): In this capital habeas case, the panel affirmed the denial of relief over claims relating to: 1) denial of a stay of habeas proceedings based upon incompetency; 2) his competency to stand trial; and 3) IAC relating to investigation into his competency and mitigation evidence.

United States v. Brian Ford Fager, No. 15-3104 (10th Cir., January 21, 2016) (Published) (Holmes, Baldock & Matheson): Search and Seizure (Traffic Stops): Pat down during a traffic stop when driver consented to a search of the vehicle was reasonable for officer safety.

United States v. Claud R. Koerber, No. 14-4107 (10th Cir., January 21, 2016) (Published) (Tymkovich, C.J., Hartz & Phillips): Speedy Trial: After a delay of five years, the district court dismissed with prejudice a multi-count indictment stemming from a Ponzi scheme. The Government appealed the “with prejudice” aspect of relief, and as you might suspect, the circuit agreed with the Government and remanded. NOTE: The remand directed the district court to reconsider some of the factors, so the Government could still lose. Also, the remand order directed the district court to consider the Speedy Trial Act first, and then whether there was a violation of the Sixth Amendment (for which dismissal with prejudice is the only remedy).

United States v. James Keith Beierle, No. 14-8049 (10th Cir., January 19, 2016) (Published) (Tymkovich, C.J., Hartz & Baldock): Federal Sentencing Guidelines (ACCA); Trial Procedure (Absent Defendant); Vouching: Felon in possession conviction is affirmed over claims relating to a denial of Due Process when Beierle was not present for a conference to settle jury instructions (purely legal matters), and also testimony that his confession was not untruthful (no prejudice); but application of the ACCA was error in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (the residual clause of the ACCA is vague).

United States v. Janet Lea Lilly, No. 14-8041 (10th Cir., January 19, 2016) (Published) (Briscoe, Holmes & Bacharach): Immunity: Federal and state agents suggested that it would be beneficial for Lilly to cooperate as a confidential informant, which she did. She was nevertheless indicted for drug conspiracy a year and a half later, and then moved to dismiss which was denied by the district court because the state and federal law enforcement (DEA) had no authority to bind the United States to such an agreement. The panel affirmed because only the U.S. Attorney can bind the federal government to such a non-prosecution agreement.




“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. David McLean, No. 14-10061 (11th Cir., September 24, 2015): Bribery; Sufficiency (Bribery): Judgment of acquittal for bribery by a state official (in charge of a state agency that accepts federal funds) is affirmed because the Government failed to establish that the benefits received from the federal government were received within the time frame established in the superseding indictment.

United States v. Robert D. Falor, No. 14-1369 (7th Cir., September 1, 2015): Supervised Release: Nifty opinion underscoring the rule that discretionary conditions of supervised release must be supported by specific findings supporting them, and failure of a trial court to make such findings cannot be harmless.

United States v. Durham, No. 14-12198 (11th Cir., August 5, 2015) (en banc): Waiver (Appellate Issues): In this felon-in-possession of a firearm case, Durham was sentenced under the ACCA because of his prior convictions. While his case was pending the Supreme Court decided a case that held the ACCA residual clause was invalid as vague, which prompted Durham to raise it in a supplemental brief. The Eleventh Circuit, apparently alone among the circuit courts, had a rule that said Durham could not raise this issue—supported by an intervening Supreme Court decision—because he had not raised it in his initial brief. In this en banc opinion, the court reversed circuit precedent on this issue and recognized that intervening Supreme Court authority that disrupts circuit precedent is cause for a litigant to raise issues not raised in his brief-in-chief.

United States v. Raymond Edward Braun, No. 13-15013 (11th Cir., September 8, 2015): Federal Sentencing Guidelines (ACCA): Sentence under the ACCA is vacated because the Government failed to prove that Braun had three prior convictions for violent felonies.




LEE GRIFFIN, Jay, secured a dismissal of armed robbery charges at preliminary hearing in the courtroom of the Hon. Alicia Littlefield. Nice work, Lee!

IN THE TRENCHES: Al Hoch probably has represented more “difficult clients” than any lawyer I know.

HUNG JURY: Jim Berry tried a murder/robbery case in Lawton recently, but the jury hung up 6-6. The State has announced intent to re-try the case during the May-June docket, after which we may be featuring the matter as a victory. Good luck, Jim!




CHIEF ARRESTED: The Hartshorne Police Chief was arrested last week on a charge of maintaining a dwelling where drugs are kept, and his wife was also arrested for possession of CDS.

FINALISTS: The Judicial Nominating Committee has selected three nominees to fill the judicial vacancy in Pottawatomie County: Dawson Engle (current Special Judge), Tracy McDaniel (Assistant District Attorney), and Emily Mueller (Assistant District Attorney).

STALKING NEWS: Unbeknownst to me, January was Stalking Awareness Month, and Purcell attorney Suzanne Snell presented the nature of the problem here in Oklahoma.

ACCREDITATION WOES: The Medical Examiner’s Office is still attempting to regain accreditation in the face of budget constraints. Meanwhile, the Oklahoma County Jail has obtained re-accreditation.

TASK FORCE: A task force made up of District Attorney David Prater, Sheriff John Whetsel, Kris Steele, Clay Bennett and Terri White addresses how to reduce the jail population in Oklahoma County, noting that many in jail are dealing with substance problems.

MURDER WAS THE CASE: A McAlester man was charged with Murder in the First Degree for bludgeoning an amputee to death with a hammer, but defense attorney Ronnie May secured a jury verdict on the crime of Manslaughter in the First Degree.

MISSIONARY NEWS: Stephen Jones caused a stir a while back by attacking the convictions of his client, a missionary from Edmond accused of molesting children in Kenya. Last week, District Judge David Russell denied the defense motion for a new trial, but did acquit the client of three of the seven counts. HERE is the Order on the defense motion for new trial.

COURTHOUSE SECURITY: Mayes County Sheriff Mike Reed wants to tighten courthouse security by making at least one entrance accessible by key-card only, which is a “touchy” subject concerning who would be issued a key-card.

A.G. SELF-FUNDED: Attorney General Scott Pruitt has told the Legislature that he does need a $6 million appropriation for the next fiscal year.

IMPROVEMENT: Acting Tulsa County Sheriff Michelle Robinette says that the financial position of the office is improving.

SELF-DEFENSE NEWS: State Sen. Keven Matthews (D-Tulsa) wants to revisit the Stand Your Ground law in the wake of a shooting by a security guard that was declared legal by the Tulsa County District Attorney.

OKLAHOMA INNOCENCE PROJECT: The Oklahoma Innocence Project, headed by Vicki Behenna, is actively representing two prisoners convicted of murder in 1994.

COPS CHARGED: Three former Crescent police officers have been charged with embezzlement for pawning their city-issued service weapons.

VIDEO ARRAIGNMENTS: Video arraignments in courtrooms are now routine, but the city of Duncan has recently implemented such a system in municipal court “to keep the general public safe from inmates.”

JUVENILE JUSTICE: A City Councilman in Tulsa is pushing to place a new juvenile justice facility at the airport.

NEW DIRECTOR: The Oklahoma Bureau of Narcotics and Dangerous Drugs has named John Scully as the new Executive Director. Scully is currently Deputy Chief at OKC PD.

CRIMINAL JUSTICE REFORM: A “newly formed coalition” called Oklahomans for Criminal Justice Reform is making strides in its attempt to place state questions on the ballot in an effort to address the problem of prison overcrowding. HERE is another article on the coalition.

DATING SCAM: The feds have made arrests in on-line dating scams that prey on older women.

EXPANSION: The Garvin County courthouse will be expanding.

SETTLED: A lawsuit filed by a person who was beaten at the Cherokee County Detention Center has been settled for $1.5 million. In a related story, some lawmakers want to address and limit settlements of lawsuits by law enforcement agencies.

NOVEL APPROACH: Acting Tulsa County Sheriff Michelle Robinette has suggested raising revenue for the jail by selling inmates smart phones. This approach may be related to the ruling by the FCC restricting the fees that jails and prisons may charge inmates, which has prompted state officials to challenge the ruling.



Despite the cratering price of gasoline, there are still gas thieves in our midst; an Ardmore woman tempting bad karma has been charged with misappropriating monies from a GoFundMe account that was intended to pay for the funeral of a murder victim; chutzpah: burglarizing an OKC store that sells police supplies called COPS; an enterprising couple in Broken Arrow defend shoplifting on the basis that the doctor prescribed it; a Tulsa woman had an accomplice on her shoplifting spree—an infant; and also in Tulsa, a man who was stabbed at a party was rushed to the hospital, and injured again when the ambulance crashed; and finally, a police officer in Guthrie showed up for work drunk—and was promptly arrested for public intoxication and carrying a weapon while under the influence of alcohol.




FRIDAY, FEBRUARY 5, 2016: State and Federal Gun Laws: When Worlds Collide: This is a 5-hour CLE presented by the OCDLA and will take place at H&H Shooting Sports, 400 N. Vermont Avenue, Oklahoma City, OK 73108.



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: ©2005-2016 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!


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