OCDW 06.27.16



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).


BEDOUIN TO BUSINESSMAN: The 2015 Entrepreneur of the Year, and French billionaire MOHED ALTRAD, for years was unable to celebrate his birthday. The reason is not because he dislikes parties, it is because he does not know when it is; nor does he know where exactly he was born. The story of how a billionaire chairman of a multinational construction company in 2016 has no record of his birth is an amazing one. His father was a tribal leader in the deserts of Syria, who raped his young teen mother, twice, resulting in the birth of two boys. His mother died shortly after his birth, and his brother was beaten to death by his father, but Mr. Altrad managed to survive by his wits, learned the value of his intellect and acquiring knowledge, and eventually made his way from the deserts of Syria to the university classrooms of Paris.

I was in Denver a couple of weekends ago, and read an opinion piece in The Wall Street Journal (Sat./Sun. June 18-19, 2016), that detailed some of his story, with a particular focus on Muslim integration. His thoughts on this subject were interesting to me because I have been studying the Qur’an and the hadith (not all of them, mainly Sahih al-Bukhari and Sahih Muslim, as they are two of the most accepted as authoritative on the life and teachings of Muhammad) extensively in an effort to understand Islamic fundamentalism. As a child in Syria, Mr. Altrad had been taught to kill Jews in his sight, but ultimately found himself at university in Paris studying alongside Jewish students, some of whom became his friends. On the prospect of assimilating from Syria to Paris, Mr. Altrad had several insights, including the culture shock that confronted him as a 16 or 17-year-old kid, and the difficulty of accepting a new way of life. Confronted with immersion in a new culture, he phrased his reaction this way: “I had a chance to understand: If I want to live and stay in France, it’s not France that’s going to change for me—I have to change.”

He did change, and became incredibly successful. Forbes printed an excellent profile of Mr. Altrad, which is worth the read. As to his birthday, Mr. Altrad recently picked an arbitrary date—Mach 9—to celebrate his birth. Long overdue.




State v. Jeremy Scott Niederbuhl, No. S-2015-672 (Okl.Cr., June 15, 2016) (unpublished): State Appeals; Discovery; Speedy Trial: Niederbuhl was charged in Mayes County with Attempted First Degree Burglary, but the Hon. Terry McBride granted a motion to dismiss on speedy trial grounds, finding that the dismissal was the result of bad faith on the part of the State. The dispute centered around a cell phone that the defense sought in discovery that was in the possession of the Mayes County Sheriff at the time the request was made.




United States v. Almundo Cruz Singer, No. 15-2169 (10th Cir., June 13, 2016) (Published) (Briscoe, Baldock & Murphy): Federal Sentencing Guidelines (Flight; Public Welfare; Reasonableness): Singer pled guilty to involuntary manslaughter in Indian Country as a result of car wreck, and was sentenced to 75-months. He challenged his sentence, but the panel affirmed over his claims relating to: 1) 2-level bump for reckless endangerment during flight; 2) a 2-level upward departure for “public welfare” endangerment; and 3) substantive reasonableness.

United States v. Fidencio Verdin-Garcia, No. 15-3165 (10th Cir., June 3, 2016) (Published) (Kelly, Gorsuch & Phillips): Sentence Modification: Denial of sentence reductions based upon USSG Amendments 782 & 788, which retroactively lowered base offense levels for drug quantities, is affirmed.

Jason Nathaniel Holland v. Joe Allbaugh, Interim Director, No. 14-5127 (10th Cir., June 6, 2016) (Published) (Tymkovich, C.J., Baldock & Hartz) (N.D. Okla., the Hon. Gregory K. Frizzell): Habeas Corpus (AEDPA Deference); Evidence: Grant of habeas relief is reversed in a case where the State introduced (without objection) evidence of Nazi tattoos on the arm of the defendant and statements about a co-defendant admitted guilt and “we don’t associate with black guys.” NOTE: Overcoming AEDPA deference is difficult, and it is sometimes difficult to ascertain what is meant by “clearly established federal law” but this opinion delves into this complicated question.

Michael DeWayne Smith v. Kevin Duckworth, Interim Warden, No. 14-6201 (10th Cir., June 6, 2016) (Published) (Briscoe, Holmes & McHugh) (W.D. Okla., the Hon. Timothy D. DeGiusti): Habeas Corpus (Capital Habeas Cases): Oklahoma capital habeas case is affirmed over claims relating to: 1) intellectual disability; 2) admission of videotaped confession (Miranda waiver); 3) IAC in the presentation of mitigation evidence; and 4) cumulative error.

United States v. Emiliano Francisco Martinez, No. 15-8019 (10th Cir., June 7, 2016) (Published) (Holmes, Seymour & Phillips): Federal Sentencing Guidelines (Hearsay): Martinez pled guilty to possession of an unregistered shotgun. At sentencing, the district court relief upon hearsay statements made by another person that Martinez and the other person had committed a burglary, which supported an enhancement. In this opinion, the panel affirmed on the basis that the hearsay statements contained sufficient indicia of reliability.

United States v. Supreme Court of New Mexico, No. 14-2037 (10th Cir., June 7, 2016) (Published) (Tymkovich, C.J., Holms & Bacharach): Prosecutorial Misconduct (General): New Mexico has a rule of professional conduct that prohibits a prosecutor from issuing a subpoena to a lawyer to present evidence about a past or present client before a grand jury or criminal proceedings unless certain criteria are met. The federal government sued, claiming that this rule did not apply to federal prosecutors because of the supremacy clause. The panel agreed as to the grand jury context.




“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).


Richard Mathis v. United States, No. 15-6092 (U.S., June 23, 2016): Federal Sentencing Guidelines (ACCA; Crime of Violence): This case involves an Iowa burglary statute and whether it qualifies as a predicate strike under the Armed Career Criminal Act. The Court held that it did not because the elements are more broad than those of generic burglary. As the Court framed the issue: The question in this case is whether the ACCA makes an exception to the general rule—that a prior conviction qualifies only if its elements are the same or more narrow than the generic offense—when a state statute lists multiple alternative means of satisfying one or more element. The Court held that there is no such exception.

Danny Birchfield v. North Dakota, No. 14-1468 (U.S., June 23, 2016): DUI: In a DUI case where the person is arrested, but refuses the test, Minnesota considers this a criminal offense in and of itself (the refusal). In this case, the Court held that the Fourth Amendment permits a warrantless breath test, but not a warrantless blood test.

Taylor v. United States, No. 14-6166 (U.S., June 20, 2016): Commerce Clause: Taylor was convicted under the Hobbs Act for robbing drug dealers which affected interstate commerce. At trial, Taylor wanted to introduce evidence that the drug dealers he targeted dealt in only home-grown marijuana. The district court did not allow it, holding that the prosecution need only show that he robbed a drug dealer. The Court held that this was enough. NOTE: Justice Thomas was the lone dissenter in this case, the voice of reason in that he would make the Government prove that the robberies actually affected interstate commerce.

Utah v. Edward Joseph Strieff, Jr., No. 14-1373 (U.S., June 20, 2016): Traffic Stops; Exclusionary Rule: During an illegal search and seizure of Strieff as he came out of house that was under surveillance, police discovered that he had an outstanding warrant for an unpaid parking ticket. The Court held that this intervening valid arrest warrant saved the initial, illegal search. NOTE: Justice Sotomayor penned a spirited dissent that is worth a read. Also, the OCCA held pretty much the same thing 10 years ago in Jacobs State, 2006 OK CR 4.

United States v. Michael Bryant, Jr., No. 15-420 (U.S., June 13, 2016): After-Formers: Uncounseled tribal court convictions for domestic abuse can be used as predicate offenses because the tribal court complies with the Indian Civil Rights Act for procedural safeguards.




United States v. Lemurel E. Williams, No. 15-1194 (7th Cir., April 26, 2016): Jurors: Interesting felon-in-possession of a firearm case where the jury was polled at the end of the trial, and one juror actually said “no” when asked if the guilty verdict was her verdict(!!) The district court sent them back to deliberate, and there was a question of whether she “misunderstood” the question, but the jury returned a unanimous verdict of guilt a second time. Nevertheless, the panel reversed because the procedures used by the district court were too coercive for the lone holdout.

United States v. Manila Vichitvongsa, No. 14-6013 (6th Cir., April 4, 2016): Conspiracy; Double Jeopardy: The accused committed two counts of conspiracy to rob and traffick drugs. The panel held that, as a matter of statutory interpretation of 18 U.S.C. 924(c)(1), the simultaneous violation of two federal conspiracy statutes cannot support two separate 924(c) convictions based on the use of one firearm.

United States v. Randy Johnson, No. 15-1366 (7th Cir., May 17, 2016): Search and Seizure (Reasonable Suspicion): This is a case involving police contact with a car that was stopped within 15 feet of crosswalk, which is illegal under Wisconsin law in some circumstances. Police saw a passenger in the backseat trying to hide a firearm (Johnson, who was a convicted felon). The majority affirmed the suppression denial, but the dissent by Judge Hamilton was spirited, including a recognition of the phenomenon of police seizures for “driving while black.” Judge Hamilton says that this is a case of “parking while black.” I had never seen that in a court opinion.

United States v. Aaron Graham, No. 12-4659 (4th Cir., May 31, 2016) (en banc): Search and Seizure (Cell Phone): The acquisition by the Government of historical cell-site location information (CSLI) does not constitute violate the Fourth Amendment.




JOI MCCLENDON, OKC, is reported to have won yet another First Degree Murder trial in Oklahoma County. Congrats on another amazing win, Joi!

KEN SUE DOERFUL, VICKI ZEMP BEHENNA, JOSH LEE, and CHRISTINA GREEN, represented two persons in Tulsa County who pressed actual innocence of murder charges during post-conviction. The Hon. Sharon K. Holmes granted relief in this ORDER filed on May 13, 2016. Congrats to Ken Sue, Vicki, Josh, and Christina for this outstanding win!

MISTY FIELDS, Pryor, and JOHN M. DUNN, Tulsa, scored a nice win in Mayes County when Judge Terry H. McBride dismissed a charge of Attempted First Degree Burglary on speedy trial grounds. The State sought an appeal/writ, which was denied by the OCCA in the nifty opinion featured above. Nice work, Misty and John!




DAVID SMITH, Norman, deservingly won the Clarence Darrow Award last week, for superior trial-level advocacy.

STEPHEN G. FABIAN, OKC, was awarded the Lord Erskine Award, which is bestowed upon a lawyer who has steadfastly over the years fought for individual liberty, even if such struggle comes at a personal cost.

LISBETH McCARTY, OIDS, was awarded the Thurgood Marshall Award for outstanding appellate advocacy.




UNDERSHERIFF RESIGNS: Wagoner County Undersheriff Chris Cook has resigned amid the “internal turmoil” of the office.

CHIEF HIRED: The town of Sawyer, Oklahoma, has hired a Chief of Police, Joe Moore, and also an Assistant Chief, Chad Wilkerson.

DRIVING WHILE REVOKED: The Oklahoma Finance Secretary, Preston Doerflinger, has been ticketed for DWR, even though he had appealed the 180 day revocation. Apparently, the stay is effected upon paying the $250.00 cash bond, not the filing of the notice of appeal.

EL CAMINO BUST: A deputy in Oklahoma County found 150 pounds of marijuana during a traffic stop of an El Camino. Who knew people still drove El Caminos?

OVERFLOW: Lawyers in private practice are picking up cases from the Public Defender in an effort to alleviate heavy caseloads.

“CATHOUSE” SLAYINGS: Two defendants in Oklahoma County escaped the death penalty in the “Cathouse Slayings” which involved the murder of a drug dealer and three women (two of whom were pregnant). Jurors opted for LWOP, which is a significant victory in Oklahoma County in death penalty prosecutions.

CARD READER KIBOSH: Gov. Fallin has ordered OHP to delay use of card reading devices that read the magnetic strip on debit/credit cards of arrested persons. According to the ACLU, the use of the device appears to have been geared by the Oklahoma Department of Public Safety to acquire bank account information and routing numbers. This is truly frightening.

JUDGE SWORN: New Pottawatomie County Associate District Judge Dawson Engle was sworn in recently.

STEIDLEY WOES: A state audit has indicated that there is “missing data” from the administration of Janice Steidley, former District Attorney for Rogers, Craig, and Mayes Counties.

RETIRED: Retiring District Judge Keith Aycock received a nice send-off in Lawton.

BODY CAMS: An arbiter has ruled that the Oklahoma City P.D. must cease use of body cams because they violate a collective bargaining agreement. Meanwhile, in McAlester, the police there say that body cams have been a positive addition to law enforcement.

JUVENILE CENTER: A new juvenile justice center in Tulsa will be built near downtown.

DOC vs. PRIVATE PRISON: The link goes to an article assessing why DOC seems slow to address beach of contracts by private prisons.

CRIMINAL JUSTICE: The Oklahoma Policy Institute summarized the criminal justice legislation of the past year.

DEATH ROW: Oklahoma now has seven inmates on death row eligible for execution. Also, in sad news, former death row inmate Curtis McCarty, who spent 19 years on death row before being exonerated, was arrested recently in Oklahoma County on a meth charge.

CRIMINAL MINDS: Interesting piece from public radio about how criminals think.




TRYING TO HELP: A Duncan man was arrested for burglary when he walked into a house and started stealing things, telling police that he went inside “to help” after heard a moan.

OUT OF GAS: Thieves were caught in Lawton after their stolen car ran out of gas. Pro Tip: car dealers intentionally keep very low levels of gas in their cars on the lot.

BEER THIEF: A man was arrested in Lawton for opening beer cans inside a convenience store and drinking them, but the incident highlights the cleverness of an editor of The Lawton Constitution who penned this headline: Brazen Beer Thief Lands Local Man in Can.

BETRAYED WITH A KISS: A woman who had been having a dispute with her husband “over hatchets” kissed him, and then stabbed him the buttocks.

SMILE!: A car thief in Oklahoma City scored on own-goal when he accidentally turned on a camera, filming himself in the act.

PAGING MS. BENATAR: A Duncan woman, found nude and wrapped in a blanket at a local business, exposed herself to police, telling them that she was the daughter of Pat Benatar and to take it up with her!

CHARCOAL GRILL vs. CRUTCHES: Somewhere in Stillwater…

GUNS WELCOME: A sandwich shop in Edmond welcomes patrons packing heat with a sign that reads, “Guns are welcome on premises. Please keep all weapons holstered unless need arises. In such case, judicious marksmanship is appreciated.” Sweet.

METH AND GATORS: Police in Ada made a drug bust that recovered a couple of pounds of meth…and a pet alligator.

SPOUSAL COMPLAINT: A man in Tahlequah lodged a complaint with the police because his wife touched him inappropriately.

HOLTZCLAW ON 20/20: The link goes to a commercial-free piece on the Daniel Holtzclaw case by the news program 20/20.

MAILBOX PORN: A sex offender in Tahlequah was recently arrested for shooting at several men—just a few days after he was accused of leaving a sex toy and gay porn in the mailbox of the Cherokee County Undersheriff.

BACON VODKA: A bartender at The Pump Bar at the Paseo was arrested for infusing vodka with bacon and other flavors. It remains to be seen whether such a thing is a crime.




FALL 2016 OKLAHOMA FORENSIC SCIENCE ACADEMY: The Academy consists of eight sessions beginning August 18, 2016, but the deadline to apply is FRIDAY, July 15, 2016.



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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: ©2005-2016 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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