OCDW 06.26.17



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).


COUNTY NO. 7: BRYAN COUNTY: The county seat is Durant (that’s pronounced Do-rant to Okies), and according to Wiki, it is the only county in the United States named after William Jennings Bryan. I have been to the courthouse there a few times over the years, which brings me to 5 out 7 on the counties tally.




No new cases.




United States v. Jorge Carillo, No. 15-2200 (10th Cir., June 23, 2017) (Published) (Hartz, Murphy & Holmes): Guilty Pleas: A guilty plea in a drug conspiracy case is vacated on the basis that the district court failed to develop an adequate factual basis supporting the plea. NOTE: The panel addressed several other issues under Rule 11, but it is unclear to me why it did so when relief was granted on the factual basis issue.

United States v. Joseph Andrew DeRusse, No. 15-3302 (10th Cir., June 20, 2017) (Published) (Tymkovich, C.J., McKay & Baldock): Federal Sentencing Guidelines (Reasonableness): In this kidnaping case, the district court imposed a sentence of time served (70 days) plus five years of supervised release (there were extensive and powerful extenuating circumstances). The Government appealed on the basis that the sentence was unreasonable. A split panel affirmed the sentence under the abuse of discretion standard. NOTE: Judge Baldock dissented.

United States v. Jason Gutierrez, No. 16-2197 (10th Cir., June 20, 2017) (Published) (Briscoe, Seymour & McHugh): Federal Sentencing Guidelines (Sentence Modification): Gutierrez sought a reduction of his drug crime sentence of 192-moths based upon an amendment (759) to the Guidelines, but the new calculation yielded an amended range of 188-192 moths, which reduced his sentence by only four months. The district court held that it was precluded from reducing it further, and in this complicated opinion, the panel agreed.




“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).


Jae Lee v. United States, No. 16-327 (U.S., June 23, 2017): IAC: Lee pled guilty to a drug offense that resulted in deportation, based upon the advice of counsel who assured him that he would not be deported. The Sixth Circuit denied relief on the basis that Lee had no rational defense to the charge. However, the Court disagreed, holding that Strickland prejudice requires only that Lee would have insisted on going to trial but for the erroneous advice.

Divna Maslenjak v. United States, No. 16-309 (U.S., June 22, 2017): Statutory Construction (Immigration): This case construes 18 U.S.C. 1425, which makes it a crime to knowingly procure the naturalization of any person. The Court held that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship; and when the act is a false statement, as in this case, the Government must demonstrate that the defendant lied about facts that would have mattered to an immigration official. NOTE: This case resolved a circuit split on the issue.

Turner et al. v. United States, No. 15-1503 (U.S., June 22, 2017): Prosecutorial Misconduct (Brady): In this murder/robbery/kidnaping case, the Government withheld evidence under Brady that was favorable to the defense, but the Court determined that it was not material. NOTE: This case explicates the “materiality” prong of a Brady analysis, but as far as I can tell, it does not resolve any legal dispute or change the law in this area. The Court acknowledged that it is a fact-intensive case, and I am puzzled why the Court decided this individual case.

Weaver v. Massachusetts, No. 16-240 (U.S., June 22, 2017): IAC; Public Trial; Standard of Review: On direct appeal, violation of a public trial is a structural error mandating reversal. This case deals with the question of a public trial violation (the courtroom was closed for two days during jury selection because it could not accommodate all of the potential jurors) that was not raised on direct appeal, but rather was raised via an IAC claim, which requires a showing of deficient performance and prejudice. The Court held that the normal IAC analysis applies, which requires a showing of prejudice.

Charlotte Jenkins, Warden, v. Percy Hutton, No. 16-1116 (U.S., June 19, 2017) (per curiam): Habeas Corpus (Capital Habeas Cases); Procedural Default: The Sixth Circuit erred in reaching the merits of a claim by employing Sawyer improperly to excuse a procedural default.

McWilliams v. Dunn, No. 16-5294 (U.S., June 19, 2017): Habeas Corpus (Capital Habeas Cases); Indigents: Denial of habeas relief is reversed when Alabama refused to follow Ake and provide McWilliams with a mental health expert during his capital murder trial.

Packingham v. North Carolina, No. 15-1194 (U.S., June 19, 2017): First Amendment: It is illegal in North Carolina for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create maintain personal Web pages.” Packingham was convicted under this law when he posted on Facebook. The Court held that the law violated the First Amendment.

Virginia v. Dennis LeBlanc, No. 16-1177 (U.S., June 12, 2017) (per curiam): Juveniles & Y.O.; Habeas Corpus (AEDPA Deference): The Graham case out of SCOTUS mandates that juvenile offenders convicted of non-homicide crimes must have some meaningful opportunity to obtain release from prison based upon demonstrated maturity and rehabilitation. The Virginia Supreme Court held that “geriatric release” meets the Graham standard, but the Fourth Circuit reversed. In this opinion, the Court reversed, holding that the Fourth Circuit failed to accord proper deference under the AEDPA.




United States v. Laura Ramos-Gonzales, No. 16-41353 (5th Cir., May 24, 2017): Supervised Release: In a case where the accused pled guilty to transporting an undocumented alien into the U.S., a condition of supervised release of “drug surveillance” (periodic urine tests) is vacated even though she had a prior drug conviction, because the condition is not supported by the reasons provided by the district court. NOTE: The entire discussion seems silly because another statute mandates drug testing in this case as a condition of supervised release. Also, the district court held the sentencing hearing via telephone, which seemed to rankle the panel as evidenced in footnote 6, and the concurrence of Judge Jones, who underscored the importance of the physical presence of the parties.

United States v. Francisco Javier Sanchez-Villarreal, No. 15-41303 (5th Cir., May 23, 2017): Federal Sentencing Guidelines (Minor Participant): In this case involving a drug mule, denial of a mitigating role adjustment is reversed.

United States v. Jaime Shakur Garcia, No. 16-10863 (5th Cir., May 23, 2017): Federal Sentencing Guidelines (Physical Restraint): In this armed robbery case, application of a physical restraint enhancement was erroneous where the use of firearms during the robbery was not the type of physical restraint envisioned by the Guidelines. NOTE: This opinion appears to be at odds with authority from the Tenth Circuit on this issue.




ERIC JONES, Muskogee, represented a client charged with beating, kidnapping and raping his ex-girlfriend, but the jury found the story not credible and acquitted. Nice work, Eric!

DONN BAKER, Tahlequah, represented a fugitive in Muskogee charged with multiple felony counts and also wanted in Ohio. Donn stepped in, resulting in acquittals on all the felony counts and a misdemeanor conviction. Terrific result, Donn!




SAMARITAN: An Ada woman bought a drug dog for the local police department.

SOMETHING MISSING: About $20,000.00 is missing from the inmate trust account at the Cleveland County Jail.

BUSTED: Police in Cherokee County have made arrests in a large drug ring.

NIGH RESIGNS: Tulsa County Public Defender Rob Nigh has resigned effective July 1, citing health issues. Stuart Southerland has been named interim Public Defender.

RETIRED: A 35-year employee of the court clerk’s office in Logan County, Patty Slater, has announced her retirement.

REPORT: The Oklahoma Death Penalty Review Commission has issued a nearly 300-page long report on the state of the death penalty.

FRIENDLY MARKET RECAP: Recap of the litigation involving the Friendly Market in Cleveland County.

THE PARDONED: A new exhibit on display at the Cherokee Nation Prison Museum in Tahlequah details the pardon process of the tribe.

OBF FUNDS: The Oklahoma Bar Foundation has issued 11 grants around the State to various county courthouses, including Garvin and McClain Counties.

DUI LAWSUIT: The DUI heavy hitters have launched a constitutional attack on a law that abolishes the administrative hearing in DUI cases.

JAIL WOES: The Oklahoman has a story on issues involving the Oklahoma County Jail.

PAVATT: The Oklahoman ran an article on the decision of the Tenth Circuit to vacate the death penalty in the James Pavatt case.

FIREARMS EXPERT: A firearms expert at the Tulsa Crime Lab has garnered some national attention.



THE BANANA: A Tulsa man walking around midtown with a banana is wanted…for holding his banana.

THE HOUSE: An eerie empty house appeared in an empty field in Claremore without explanation.

BUSTED: A man was arrested for transporting over 700 lbs. of marijuana…into Tinker Air Force Base.

BUSTED II: A Tulsa man has been arrested with 44 lbs. of meth in his car…because he failed to signal.

IT’S NOT MINE: A disgruntled ex-girlfriend returned her boyfriend’s car…along with a marijuana plant in the front seat.




THURSDAY, JUNE 29th and FRIDAY, JUNE 30th, 2017: 2017 PATRICK A. WILLIAMS CRIMINAL DEFENSE INSTITUTE will take place in Oklahoma City at the Reed Center located at the Sheraton Hotel. The link goes to registration info and more info about the venue.



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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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