OCDW 07.17.17



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).


No. 9: CANADIAN COUNTY: Canadian County is the fifth-most populous county in Oklahoma, and takes its name from the Canadian River. The county seat is El Reno, and I have been there many times over the years, which pushes my county practice to 7 out of 9 so far.




Daniel Bryan Kelley v. State, No. F-2015-963 (Okl.Cr., July 13, 2017) (unpublished): After-Formers (Enhancement): Kelley was convicted by jury in Tulsa County (the Hon. William J. Musseman, presiding) of Rape by Instrumentation (AFCF x 2) and Assault and Battery. The State sought to prove the existence of a prior conviction for Aggravated Battery in Kansas by introducing a journal entry of judgment from Kansas. The Court found this evidence was insufficient to prove that the prior in Kansas was a felony under Oklahoma law. The general rule is that a conviction in a foreign jurisdiction may be used to enhance a crime in Oklahoma if the foreign conviction, at the time it was committed, would have been a felony in Oklahoma.




United States v. Dakota Lane Williston, No. 15-7080 (10th Cir., July 5, 2017) (Published) (Briscoe, Matheson & Phillips) (E.D. Okla., Hon. Ronald A. White): Grand Jury; Evidence (Rule of Completeness): The central issue here is the enterprising argument raised by Williston that he was entitled to Miranda warnings at a grand jury appearance where he was subpoenaed when he was incarcerated for unrelated reasons. The panel held that the warnings are not required. Also, the Government introduced an edited video of statements by Williston, and the panel found no violation of the rule of completeness.

United States v. Britt Jarriel Hammons, No. 16-6024 (10th Cir., July 7, 2017) (Published) (Briscoe, Ebel & Murphy) (W.D. Okla., the Hon. Stephen Friot): Federal Sentencing Guidelines (ACCA-Crime of Violence): The drive-by shooting statute in Oklahoma (21 O.S. 652(B)) qualifies as a violent felony under the ACCA.

United States v. Ann Marie McNeal, No. 16-1054 (10th Cir., July 10, 2017) (Published) (Hartz, Baldock & Holmes): Search and Seizure (Search Warrants; Sufficiency): (McNeal was convicted of “disposing” of a firearm to her son who was a convicted felon. On appeal, she attacked the sufficiency of the affidavit supporting the search warrant of her home as based upon statements she made to law enforcement which she alleged were coerced, and also that the affidavit contained false descriptions of her statements. The panel rejected these arguments.




“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.




James Timothy Samples v. David Ballard, Warden, No. 16-6740 (4th Cir., June 23, 2017): Habeas Corpus (Procedural Default): Odd procedural issue where a habeas petitioner raised an issue for the first time in an objection to a magistrates findings and recommendations. The panel held that, in general, the district court must hear such issues, but in this case the district court did not commit reversible error.

United States v. Jeffrey Alexander Sterling, No. 15-4297 (4th Cir., June 22, 2017): Venue: A CIA agent was convicted of multiple offenses related to leaking classified information to reporters, and the panel mainly affirmed except for a count where the Government failed to prove proper venue for one of the counts.

United States v. Mark Ulisses Concha, No. 15-4760 (4th Cir., June 26, 2017): Federal Sentencing Guidelines (Substantial Assistance): Drug conspiracy sentence is vacated because the district court abused its discretion by considering factors unrelated to Concha’s substantial assistance to the Government when imposing sentence.

United States v. Briceton Grant, No. 16-4258 (4th Cir., July 6, 2017): Credit for Time Served: Odd case involving this question: “After the Government prematurely released Briceton Grant from prison, Grant sought credit for the time he erroneously spent at liberty. Assuming federal common law offers such relief, the district court did not improperly deny him this credit.”




None reported.


GOOD RESULT: A Geronimo man with 25 years of law enforcement experience and a foster parent, was sentenced in Comanche County to a two-year deferred sentence in the hot vehicle death of a three-month old foster child by Special Judge Ken Harris. It appears that Eddie Valdez was the defense lawyer. The tragedy appears to be a pure accident where the man followed a daily routine and simply blanked out. This seems to happen in these cases more than one might think.

GOOD RESULT II: In Oklahoma County, Judge Michele McElwee imposed a rare sentence of straight probation for 40 years in a DUI manslaughter case. Defense counsel was Jaye Mendros, with Catt Burton representing the State. Good result.




U.S. ATTORNEYS: It has come to my attention that the U.S. Attorney’s Office for the Eastern and Northern Districts of Oklahoma will no longer release the names of the AUSA’s to the Legal Directories book (Blue Book). I suppose it has to do with some security reason, but it seems outrageous.

JUVENILES: Officials in Jackson County have contracted with other facilities to house juvenile offenders.

JUVENILES II: The juvenile detention center in Muskogee has re-opened in the wake of an investigation of an inmate suicide.

ELECTION: Ex-State Senator Ralph Shortey’s seat was up for grabs, and it has been won by Michael Brooks-Jimenez, a criminal defense lawyer who occasionally posts on the OCDLA list-serv.

COW COPS?: The article showcases Oklahoma law enforcement officers who track down cattle rustlers. The agents are part of the Oklahoma Department of Agriculture Law Enforcement Agency. I was not aware that the Department of Agriculture had law enforcement agents. The head of this Agency is Col. Jerry Flowers, formerly of the OKC PD.

CONTRABAND: Yet another attempt to throw contraband over the fence of a prison, this time at Lawton Correctional Facility.

RIOT: A riot at Great Plains Correctional Facility at Hinton resulted in minor injuries to three guards and several inmates.



IMPLEMENT OF MURDER: A man in Cherokee County has been arrested for beating another man to death…with a rake.

BUZZ: The Rogers County Sheriff’s Office received a call recently regarding theft of…400,000 bees.



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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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