OCDW 04.18.16



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).




Delila Pacheco v. State, No. F-2014-1029 (Okl.Cr., April 15, 2016) (unpublished): Interpreters: Pacheco was convicted by jury in Cherokee County (the Hon. Darrell G. Shepherd, presiding) of First Degree Child Abuse Murder and sentenced to life. The Court affirmed over several claims, but found error (harmless plain error) because the trial court employed an unapproved interpreter to translate the testimony of the husband. There was no objection at trial, but the criteria governing interpreters (20 O.S. 1701 et seq.) was not met.




United States v. Hiram Marceleno, No. 15-2074 (10th Cir., April 11, 2016) (Published) (Kelly, Briscoe & Hartz): Guilty Pleas: After having pled guilty to re-entry of a removed alien, Marceleno sought to withdraw his plea on the basis that it was not knowing, and he asserted innocence. In this opinion, the panel affirmed the denial of the motion to withdraw his plea. NOTE: Judge Hartz dissented, disagreeing with the majority, and also noting that the motion to withdraw was presented prior to sentencing.

United States v. Jamis Melwood Johnson, No. 13-4090 (10th Cir., April 11, 2016) (Published) (Hartz, Gorsuch & Phillips): Sufficiency; Motion for New Trial: In this fraud/conspiracy case (and money laundering), Johnson appealed, raising issues of sufficiency of the evidence and prosecutorial misconduct. The panel affirmed, holding that the motion for a new trial was untimely, and the one that was timely raised the prosecutorial misconduct claim which was denied.




“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. Gregorio Paniagua-Garcia, No. 15-2540 (7th Cir., February 18, 2016): Search and Seizure (Traffic Stops); Texting: An Indiana statute outlaws texting/receiving e-mail while driving, but all other functions of cell phones are allowed. When an officer saw the motorist holding a phone and leaning down, he effected a traffic stop. In this terrific opinion, the panel held that there was no reasonable suspicion that the person was texting (as opposed to the other legal things he could do with his phone).

United States v. Bralen Lamar Jordan, No. 14-3444 (8th Cir., February 12, 2016): Federal Sentencing Guidelines (ACCA; Crime of Violence): In this felon in possession of a firearm case, enhancement is invalid because a state court prior conviction for aggravated assault in Arkansas does not count as a crime of violence.

Robert Douglas Smith v. Dora B. Schriro, Warden, No. 96-99025 (9th Cir., February 4, 2016): Habeas Corpus (Capital Habeas Cases); Death Penalty (MR): A split panel issued habeas relief in a state death penalty case on a mental retardation issue. NOTE: This is a pre-AEDPA case, so no deference to the state court decision.




RUSSELL USELTON, McAlester, was hired to represent the Police Chief in the town of Hartshorne who, along with his wife, was charged with CDS possession when agents found marijuana in the home. The charges against the Chief were dismissed recently. Nice work, Russell!

DOUG PARR, OKC, caught OKC PD Hefner IMPACT Officer Chad Vontungeln in a couple of lies on a search warrant affidavit in a drug case recently in Oklahoma County before the Hon. Fred Doak. Doug provided his cross-examination during the preliminary hearing. Judge Doak ruled that the false statements in the affidavit were essential to the PC finding, and thus granted the motion to suppress. The State did not appeal. These documents are essential to impeaching the credibility of Officer Vontungeln. Good job, Doug!




STINGRAYS: No, not the animal…the “cell site simulator” that helps law enforcement track cell phones. According to the article from Oklahoma Watch, both the OBNDD and the OKC PD have the device, although OBNDD claims to have never used it and the OKC PD says that it borrowed it from the FBI and would not give details.

EXECUTION: This one is out of Georgia, not Texas for a change, where the state executed Kenneth Fults for a 1996 murder.

JUDICIAL VACANCIES: Not a whole lot of news coverage, but the Bar Journal noted that Comanche County District Judge Keith Aycock is retiring; and also, Judge William Hetherington of the Court of Civil Appeals is leaving the bench.

BUYING PRISONS: DOC is looking into purchasing empty prison facilities owned by Correction Corporation of America to alleviate overcrowding.

MANSON FAMILY: Manson follower Leslie Van Houten, now 66-years-old, has been recommended for parole in California.

MISTAKE: A man spent the weekend in jail and is out $500 in costs after a police officer mistakenly entered the wrong serial number on a firearm which returned stolen when it was not. Authorities caught the error, but when asked if they will pay the guy the $500, they responded that he would have to file a formal complaint. This is the sort of thing that drives me crazy about government. The cops made a mistake. It happens. If they would just apologize to the guy, give him the $500, shake his hand, then it would be proper. But no. The guy has to initiate some formal complaint, which will start a string of paperwork and bureaucracy to stonewall it. The guy did not make the mistake. The cops did. I do not understand why the guy has to do anything. The cops should be proactive and rectify the situation. But, they won’t. The never do.

COMPETENT?: Al Hoch had a client who went on a profanity-laced tirade in court, which resulted in a second competency exam in Vinita which is 250 miles away from Clinton. According to the Sheriff, the client was at Vinita for “only eight minutes” before being declared competent(!!)

OSCN: The state court network is now up to 68 counties.

SENTENCING GUIDELINES: The USSC has issued proposed changes relating to immigration policy, compassionate release, animal fighting, and child porn possession (and noting a conflict among the circuit courts of appeals).

BEDBUGS: Have infested the Oklahoma County Jail (as if being in jail wasn’t bad enough).

SAFE TOWNS: A web site (backgroundchecks.org) has issued a list of the safest cities in Oklahoma. Another SITE offered this list of 10 towns in Oklahoma where you would never want to live.

TEXTING: This article details the numbers of tickets and law enforcement efforts since the no-texting law took effect.

REPORTER HONORED: The Tulsa County Bar Association recently honored former Tulsa World writer Julie DelCour with the Liberty Bell Award.




LIKE PULLING TEETH: An Indiana man went to the dentist to get four teeth pulled to remove an abscess…and woke up to find that the dentist had pull all of them.

GOOD NEIBHBOR: A Madill man was in shock when his surveillance cameras caught the culprit who tried to burn down his house—a trusted neighbor of almost 20 years.

TACO TRUCK: A popular taco truck in Edmond has been stolen. UPDATE: It was recovered in Pott County.

CHASE: A man in Love County took deputies on a police chase when he bolted from the courtroom.

BAD MOJO: Generous workers at a local Sonic gave some food to a woman for free when her card was declined, the woman repayed the kindness—by robbing a carhop.

LEFT BEHIND: A burglary in Tulsa got away with a cache of electronics—but he left behind his wallet.

TATTOOS: A couple in Bryan County was arrested for tattooing—the woman’s small children. Alcohol was involved.

STUDENT LOANS: It seems that one federal judge in Houston is responsible for nearly all of the arrests in the country for people not paying back student loans.

THAT SMELL: A Duncan man explains that the odd odor on his scales is oregano—definitely not illegal drugs. Hey, he likes to cook.



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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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