OCDW 11.21.16



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).




State v. Patrick Lee Walker, No. S-2016-169 (Okl.Cr., November 17, 2016) (unpublished): State Appeals; Venue: In this drug case out of Kay County, the Hon. David A. Bandy granted a motion to quash because the State failed to establish venue (although the CI got into the car in Kay County, there was no testimony when or where the drugs were delivered). The State appealed, and in this Order the Court affirmed in an odd fashion, finding that the district court abused its discretion in adopting the position of defense counsel, but chastising the State for failing to request an amendment or arguing that it would have. NOTE: This was a 3-2 decision, with Judges Lumpkin and Hudson dissenting.

Russell Carl McCrillis v. State, No. F-2015-886 (Okl.Cr., November 14, 2016) (unpublished): Standard of Review (Suppression of Statements); Supervised Release: McCrillis was convicted by jury in Craig County (the Hon. H.M. Wyatt, II, presiding) of Lewd Molestation, and sentenced to 20 years, plus supervised release, but for an indeterminate time. The Court found error in not sentencing to supervised release for a specific term of years. NOTE: The opinion contains a detailed recitation of the standard of review in suppression of statements cases.

Tracy Lee Anderson v. State, No. RE-2015-767 (Okl.Cr., November 18, 2016) (unpublished): Suspended Sentences; Supervised Release: In this revocation case out of Seminole County, revocation in full of five years plus nine months of supervised release is modified to vacate the supervised release since it was not part of the original sentence, and to give Anderson credit for jail time already served, and also credit for a sanction that she served since failure to do so would increase the maximum sentence.

United States v. Garry Don Scott, Jr., No. 09-CR-126-CVE (N.D. Okla., November 17, 2016): Federal Sentencing Guidelines (ACCA): In this Order, the district court in Tulsa granted a 2255 motion attacking application of the Armed Career Criminal Act under Johnson in a case where the accused had six prior felony convictions which were held to be invalid as predicates under the ACCA, reducing the maximum punishment to 10 years, which is significant since Scott was sentenced to 250 months.




United States v. Elias Vega Amado, No. 15-6162 (10th Cir., November 14, 2016) (Published) (Gorsuch, Baldock & Phillips) (W.D. Okla., Hon. Joe Heaton): Waiver (Appeals Waiver); Jurisdiction (Appellate): Amado sought to reduce his sentence under Amendment 782 regarding drug quantities, but the district court denied these efforts. The panel affirmed, primarily on the strength of his appeals waiver, and also a construction of Rule 37 regarding “Ruling on a Motion for Relief That is Barred by a Pending Appeal” which was itself not timely filed.

United States v. Ashley Larae Tidzump, No. 16-8021 (10th Cir., November 9, 2016) (Published) (Lucero, McKay & Bacharach): Federal Sentencing Guidelines (Drug Rehab): District court increased a sentence for assault so that the accused would qualify for a drug treatment program. Since this is prohibited under Supreme Court precedent, the sentence is vacated.

In re: Kenneth Eugene Barrett, No. 16-7035 (10th Cir., November 7, 2016) (Published) (Kelly, Hartz & Matheson): Habeas Corpus (Second/Successive): Federal death row prisoner sought authorization for a second 2255 motion based upon new evidence on a wide range of topics such as prosecutorial misconduct, fabricating and destroying evidence, suborning perjury, planting evidence, witness intimidation and reliance on junk science. In this lengthy opinion, the panel denied authorization on the merits, concluding that the new evidence would not disturb the verdict of the jury.




“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. Peter Victor Ayika, No. 15-50122 (5th Cir., September 14, 2016): Forfeiture: District court erred in holding that forfeitable assets arising from commingled funds could be seized under 18 U.S.C. § 982(a)(7); but when assets cannot be traced to the crime of conviction under 982(a)(7) because of commingling, the Government may invoke 21 U.S.C. § 853(p) to satisfy the money judgment.

United States v. Ephesian Johnny Franklin, No. 15-20622 (5th Cir., September 28, 2016): Supervised Release: In this felon-in-possession-of-firearm case, a special condition of supervised release that Franklin participate in a mental health program is vacated.

United States v. Lamar Young, No. 15-1495 (1st Cir., August 19, 2016): Search and Seizure (Arrest Warrants—Home): Police executed an arrest warrant for Young at his girlfriend’s home without her consent. The panel held that police lacked the necessary level of belief to justify entering the apartment; thus, motion to suppress and his conviction are reversed.

Walker Whatley v. Dushan Zatecky, Superintendent, No. 14-2534 (7th Cir., August 15, 2016): Habeas Corpus (Exhaustion); Statutory Construction: In an Indiana case involving a drug conviction near a “youth program center” denial of habeas relief is reversed because it was properly exhausted, and the phrase was vague.




JARROD STEVENSON & THOMAS A. GRIESEDIECK, OKC, scored a nice victory both in the trial court and on appeal in the unpublished Walker opinion, featured above. Good job, Jarrod and Thomas!

CINDY VIOL, roving OIDS conflict lawyer out of OKC, scored a huge win in front of a Custer County jury when it acquitted her client of child molestation in a case involving his girlfriend’s 10-year-old daughter. The jury deliberated only one hour after a two-day trial. This is another good win for Cindy!

BARRY DERRYBERRY, Federal Public Defender in Tulsa, convinced Judge Claire Eagan to grant a 2255 motion, and on a successive motion at that, attacking the applicability of six prior convictions. This is sharp advocacy on a tough legal claim. Nice work, Barry!


RIP FRED J. SHAEFFER: The link goes to the obituary of Norman attorney Fred Shaeffer, who passed away recently at his home. Fred was highly respected as a lawyer, and I had the privilege of working on an appellate matter with him. He was first rate and will be missed.




DOC: DOC projects huge population increases in the next ten years. Also, the McAlester News interviewed Terry Royal, the new warden at OSP about the future of that facility. DOC has presented its budget request and it includes a huge $1.648 billion request, which includes two new medium security facilities.

MENTALLY ILL: In-depth articles from NewsOK about the incarceration of the mentally ill.

METH LAB DECLINE: The good news is that local meth labs run by redneck yokels are on the decline; the bad news is that the demand is being met by Mexican drug cartels.

ADA HONORED: First Assistant District Attorney Ricky McPhearson of Weatherford has been honored by the Bar as Professional Advocate of the Year.

VIRTUAL REALITY: Virtual reality may have caught on at OU law school as a tool to teach law students about real crime scenes.

LEGAL RESEARCH: Two authors from the American Law Institute have created a 1,300 page manual of criminal defense, free for the downloading HERE.



BUILDING BASHER: An OKC man was arrested for attacking the Devon Building with rocks…and causing $70,000.00 in damage!

WHAT CRIME, MAN?: A suspect in a car burglary was so high that he could not remember his crime…take a look at this kid.

DEATH ROW ROAD TRIP: Death row inmate may get to take a trip from death row to the courthouse…to get a marriage license.

TAGGER BLUES: An OKC graffiti artist has been tagged with 43 counts of vandalism(!)

TOO TIRED: A burglar in Tulsa got tired…and passed out in the home he just burgled.

SPEEDER: A speeder in OKC was arrested for driving his Mustang 208 mph!




FRIDAY, DECEMBER 9, 2016: Tulsa County Bar Association annual HODGEPODGE XXVII, moderated by Paul Brunton and Barry Derryberry. Lots of good speakers at this one!

FRIDAY, DECEMBER 16, 2016: The OCDLA presents a seminar on federal and state racketeering.



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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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