OCDW 07.31.17

 

(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. 11: CHEROKEE COUNTY: This county is located in the northeast part of our state, and the county seat is Tahlequah (which is also the capital of the Cherokee Nation). Northeastern State University is located there. I have been to Tahlequah several times on vacations to raft down the Illinois River, but have never been to the courthouse there on a case, which brings my county total to 8 out of 11.

 

 

No new cases.

 

 

United States v. Harold Arthur Henthorn, No. 15-1490 (10^th Cir., July 26, 2017) (Published) (Tymkovich, C.J., Seymour & Kelly): Burks Notice and Bad Acts: Murder conviction affirmed over a claim relating to the introduction of 404(B) evidence of the accused killing his second wife under circumstances similar to those that led to the death of his first wife.

United States v. Louis Roberson, No. 16-6136 (10^th Cir., July 25, 2017) (Published) (Hartz, Matheson & Moritz) (W.D. Okla., Hon. Stephen Friot): Search and Seizure (Seizure; Submission to Authority): Fractured set of opinions on whether Roberson was seized or submitted to authority when approached by police in the parking lot of Slick Willie’s pool hall in Oklahoma City. Judge Matheson affirmed the denial of the motion to suppress because Roberson did not submit until after officers had developed reasonable suspicion to seize him; Judge Hartz affirmed because the police did not show authority when they shined lights and approached the car; and Judge Moritz voted to reverse because the actions of the officers amounted to a show of authority and Roberson submitted to it before they had reasonable suspicion to detain him.

United States v. Samuel Terraye Windom, No. 16-1027 (10^th Cir., July 24 2017) (Published) (Hartz, Baldock & Holmes): Search and Seizure (Reasonable Suspicion); Traffic Stops: Denial of suppression motion is affirmed where Windom conceded that officers had reasonable suspicion to stop his vehicle, but he challenged the manner in which they executed the stop by using a heightened degree of force because Windom had previously waived a gun. The panel concluded that the degree of force used was reasonable and justified.

 

 

“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. Michael Mancil Brown, No. 16-6291 (6^th Cir., May 15, 2017): Jurors (Questioning Witnesses); Federal Sentencing Guidelines (Obstruction of Justice): Brown was convicted in a scam to extort money when he claimed to have Mitt Romney’s tax returns (he did not). The panel affirmed the convictions but vacated the sentence upon finding that an enhancement for obstruction of justice was not warranted (Brown told investigators that others had access to his computer). NOTE: The district court allowed jurors to ask questions of witnesses, and the panel found no error. I included this opinion because it contains a discussion on this topic which is a rare trial event.

United States v. Dominick Andrews, No. 16-3130 (6^th Cir., May 23, 2017): Guilty Pleas: Denial of motion to withdraw guilty plea is reversed where the district court used language at the change of plea hearing indicating that it had not actually accepted the plea (“Normally, at this time I would go ahead and accept the plea and make a finding of guilt, but since it’s a recommended sentence, we have to refer the matter to the Probation Department for a PSI. When that comes back, we’ll come back in court and we’ll go ahead from there, Okay?”

United States v. Anthony Allen and Anthony Conti, No. 16-898-cr (2^nd Cir., July 19, 2017): Interrogations (Fifth Amendment): Interesting case where the defendants were forced to testify in the U.K. regarding their role in a bank fraud scheme, and they were subsequently indicted and convicted of bank and wire fraud in the U.S. in a case where the Government used the testimony that was compelled by a foreign jurisdiction. The panel held that the Fifth Amendment still applies and reversed the convictions.

United States v. David Patrick Diaz, No. 16-4226 (4^th Cir., July 26, 2017): Restitution: Diaz tried to rush a cockpit on a commercial flight and was convicted of interference with a flight crew. The issue was whether he had to pay the full amount of restitution under the Mandatory Victims Restitution Act or whether his crime was covered by the Victim and Witness Protection Act. The panel held that the VWPA applied because the crime of interference with a flight crew is not categorically a crime of violence.

 

 

None reported.

 

 

REEFER MADNESS: The article states that there are more marijuana dispensaries in Colorado than Starbucks locations, but still no reliable DUI test for marijuana.

SECRET HEARINGS: Former Oklahoma City Police Officer Daniel Holtzclaw is appealing his convictions, but the local media is reporting an odd situation where the district court has been holding hearings, pursuant to a remand Order from the OCCA, under seal and apparently ex parte. These hearings purportedly deal with the testimony of OSBI witnesses regarding DNA evidence.

DEBATE: Dubbed the “Tussle at the Tower” a debate between candidates for Oklahoma County Sheriff will take place at the Tower Theatre on August 23, 2017, at 6:00 p.m.

RETIREMENT: Judge Bryan Dixon and Judge Roger Stuart (Oklahoma County) have announced their retirement from the bench.

CHARGED: The great-grandson of televangelist Kenneth E. Hagin has been charged with a drive-by shooting, but the matter may not to go trial as a result of the efforts of former Tulsa County District Attorney Tim Harris.

P.C.: Attorney Mark H. Barrett has filed a second application for Post-Conviction Relief in the OCCA on behalf of his client Julius Jackson based upon racial concerns in the capital case.

EXECUTION: The State of Texas has executed its fifth prisoner this year.

BONNIE AND CLYDE: Interesting article about the exploits of Bonnie and Clyde back in the day in southeastern Oklahoma.

LOBBER: Yet another man arrested for throwing contraband over the wall at Lawton Correctional Facility; also, an employee at LCF was busted for trying to bring in a diaper full of marijuana.

CONSTRUCTION: Construction of a “security vestibule” is underway in Grady County.

NOMINATED: President Trump has nominated Charles Goodwin to the federal bench in the Western District of Oklahoma.

AMNESTY: The City of Haskell is offering an amnesty program for traffic tickets.

PROGRAM: The City Attorney in Muskogee may implement a program for low-level offenders, modeled on a similar program in Spokane, Washington.

INDICTED: Garfield County Sheriff Jerry Niles, along with five others, has been indicted by a grand jury and charged with second-degree manslaughter by causing the death of an inmate.

INDUCTED: Meanwhile, the Cherokee County Sheriff has been inducted into the Oklahoma Law Enforcement Museum and Hall of Fame.

EASING OVERCROWDING: Steps to alleviate the inmate population are being considered for inmates within 18 months of release and eligible for community supervision.

CITY ATTORNEY NAMED: The City of Enid has named a former City Attorney, Carol Lahman, as the new interim City Attorney, after the Board refused to renew the contract of Andrea Chism.

R.I.P.: An Oklahoma Highway Patrol Lieutenant has died from injuries sustained in a car chase.

ODD PROCEDURE: A murder prosecution in Garvin County has taken an odd turn as both the prosecutor and the defense have moved to postpone the case until they get an opinion from the Bar Association’s Legal Ethics Advisory Panel on whether defense counsel has a conflict in the case.

 

WACKY CRIME

HOLY CRIME: A couple in Tulsa ended up in the clink after a dispute where the man became angry and allegedly shot the family Bible multiple times in the middle of the living room. The man purportedly had “at least 12 beers” before shooting the good book.

RUSTLER: A man is facing 63 counts in Okfuskee County of…cattle rustling.

SIMON SAYS PRISON: An Enid man pled guilty to exposing himself to four children during a game of Simon Says.

BUST: A bust in Adair County uncovered guns, drugs…and “undocumented wildlife.”

HAPPY ENDING: Not so happy for the Mandarin Madams in Sequoyah County.

BAD JUDGMENT: A drug dealer was arrested in Marshall County…after he drew attention to himself by parking his motorcycle inside his motel room.

CAR THIEF: A car thief in Oklahoma City also helped himself to some beers out of the fridge of the dealership.

CAUGHT: A suspect hiding in an apartment building was caught…after he crashed through the ceiling where he was hiding.

BRAZEN: An Enid man is wanted for passing cell phone and contraband to an inmate at the Garfield County Courthouse.

BAD HIDING PLACE: A woman arrested on a felony charge got caught trying to hide a syringe…in the copier at the Roland police department.

WEEDS: A Bokchito man got liquored up and assaulted a neighbor…with weed killer.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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