OCDW 07.24.17



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. 10: CARTER COUNTY: This county in south-central Oklahoma was named after Captain Ben W. Carter, a Cherokee Indian who married and settled among the Chickasaws, and whose son, Charles D. Carter, was a U.S. Representative from 1907 to 1927. I have appeared in the courthouse at Ardmore, the county seat, a number of times, which brings my county total to 8 out of 10.




No new cases.




United States v. Gavin Yepa, No. 16-2060 (10th Cir., July 17, 2017) (Published) (Tymkovich, C.J., Baldock & Hartz): Interrogations (Fifth Amendment): As the panel stated it, “The sole issue on appeal is whether self-incriminating statements by Defendant Gavin Yepa during a search of his person authorized by a warrant were spontaneous or were the result of interrogation.” Under the facts, the panel held that the statements were spontaneous.

United States v. Justin Cherif Pickel, No. 16-3041 (10th Cir., July 18, 2017) (Published) (Tymkovich, C.J., Matheson & Moritz): Search and Seizure (Collective Knowledge); Sufficiency; Conspiracy (Forfeiture): Drug conspiracy convictions are affirmed over claims relating to: 1) search of vehicle (collective knowledge doctrine); 2) sufficiency of the evidence; 3) variance; 4) supervised release (waived); and forfeiture (no joint liability under the recent Honeycutt case out of the Supreme Court).

United States v. David Brian Magnan, No. 16-7043 (10th Cir., July 20, 2017) (Published) (Briscoe, McKay & Baldock) (E.D. Okla., the Hon. Ronald A. White): Hearsay (Excited Utterance): Lengthy opinion on the issue of whether several statements in a murder case were excited utterances, and thus admissible under the hearsay rule. The panel held that they were admissible.

United States v. Andrew Joseph Workman, No. 16-1401 (10th Cir., July 21, 2017) (Published) (Lucero, Bacharach & Phillips): Search and Seizure (Search Warrants; Good Faith): This is the case where the FBI seized the child porn site and operated it for a while as it tracked down users across the country. Here, the district court granted a suppression motion on the basis that the web site was maintained in Virginia, but a warrant for Colorado was invalid. In this opinion, the panel assumed that the warrant was invalid, but applied Leon good faith to avoid suppression.

United States v. Jonathan Kearn, No. 15-3121 (10th Cir., July 21, 2017) (Published) (Tymkovich, C.J., Matheson & Moritz): Child Porn: A jury convicted Kearn of child porn crimes when to took photos of his four-year-old daughter and posted them on the internet. The panel affirmed over claims relating to: 1) evidentiary objections of questions eliciting hearsay (no plain error); 2) jury instructions that the jury had to agree on which specific images formed the basis of the conviction (the law does not require this, only that the jury be unanimous on the elements of the crime, not the means of satisfying each element); 3) supervised release prohibition against seeing his daughter (waived because not argued below); and 4) cumulative error.




“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).


Honeycutt v. United States, No. 16-142 (U.S., June 5, 2017): Conspiracy; Forfeiture: Federal statute allowing forfeiture of proceeds from drug crimes does not allow for joint and several liability in a drug conspiracy case.




United States v. Francisco Antonio Colorado Cessa, No. 16-50328 (5th Cir., June 9, 2017): Prosecutorial Misconduct (Brady Cases): Money laundering conviction is remanded to the district court for further proceedings on a Brady claim involving prior statements by an FBI informant.

Scott Louis Panetti v. Lorie Davis, Director, No. 14-70037 (5th Cir., July 11, 2017): Indigents; Insanity & Competency: In this capital case, district court denial of appointed counsel and funding to hire a mental health expert is reversed, its factual findings related to competency vacated, and remanded for additional proceedings, “another chapter in this judicial plunge into the dark forest of insanity and death directed by the flickering and inevitably elusive guides.” Nice.




DEATH ROW CONFESSION: Intriguing story of death row inmate Michael Lee Wilson (since executed) who made a death-bed confession that exonerated other inmates in a murder in Tulsa.




SUSPENDED: The Chief of Police for the city of Wilson has been suspended for dismissing a traffic ticket issued to former Love County Sheriff Joe Russell.

INDICTED: A grand jury has issued six indictments related to the death of an inmate in the Garfield County Jail, however the indictments have remained sealed until the targets are arrested.

NEW DEAL: The Pauls Valley Police Department has formalized an agreement with the OSBI for that agency to handle certain investigations such as police-involved shootings.

WARRANT: The OSBI has served a search warrant on the Purcell Police Department.

RIP: The Harper County Sheriff, Tra Snider, has passed away after a long battle with cancer.

OUT: The City of Enid has voted to not renew the contract of City Attorney Andrea Chism.

SECRECY: There has been some sort of secret hearing in district court on the Holtzclaw case.




GIMME: The victim in an armed robbery case out of Tulsa demanded that police find her boyfriend…and her weed.

EVIDENCE: OBN raided a marijuana field and had to employ life-saving measures on a man found in the field who had ingested 30 methadone pills.

‘RHOID RAGE: A woman got into a fight with another woman in the restroom at the River Spirit Casino…and firebombed the other woman with a lit roll of toilet paper.

DEPUTY v. DEPUTY II: A Grady County deputy who arrested a McClain County deputy last week, has himself been fired.

BLOW IT UP: An Edmond man had counterfeit tickets to the Paul McCartney show, so they would not let him in…so, he threated to blow up Chesapeake Arena, for which he was summarily arrested.

KEEP IT WEIRD: A Lawton woman noticed a trash bag outside her house…and soon discovered that another woman was hiding inside if it, jumped out, and peppered strayed the first woman in the face. A wit commented on this story, “Keep Lawton Weird.”



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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: ©2005-2017 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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