OCDW 08.21.17



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. 14: CLEVELAND COUNTY: Named after President Grover Cleveland, Cleveland County is the third most populous in our state, with Norman, Oklahoma, the county seat and home to the University of Oklahoma. I have been to that courthouse many times, including when I was in law school at O.U. as part of the Criminal Defense Clinic as an intern. The Clinic had offices downtown rather than on the law school campus, and I remember doing research there into the night so late that they locked me inside the building. I had to wait until the custodians came in at 7:00 a.m. to unlock the door. I did that twice! 10 out of 14.




Norberto Cruz Cruz v. State, No. C-2017-760 (Okl.Cr., August 11, 2017) (unpublished): Jurisdiction (Appellate): Cruz entered guilty pleas to drug offenses in Garvin County (the Hon. Leah Edwards, presiding). In the normal course of an appeal in a guilty plea case, the accused is sentenced, then files a motion to withdraw the plea, which is either granted or denied; if denied, then he must file notice of appeal within 10 days. Here, however, Cruz filed a motion to withdraw his plea prior to sentencing; and only filed notice of intent to appeal within 10 days of sentencing, but not within 10 days of the denial of his motion to withdraw his plea. OIDS filed a motion to dismiss based on lack of jurisdiction, but the Court denied this motion, construing its rules in a way that made the notice timely.

John Stanton Lewis v. State, No. F-2016-179 (Okl.Cr., August 17, 2017) (unpublished): After-Formers (Enhancement): Lewis was convicted by jury in Comanche County (the Hon. Keith B. Aycock, presiding) of drug and firearms charges. The Court affirmed, but modified a count of possession of marijuana from a felony to a misdemeanor because, although Lewis did not multiple priors, none were a prior violation of 63 O.S. 2-402.




United States v. Stephen M. Nelson, No. 16-3292 (10th Cir., August 17, 2017) (Published) (Tymkovich, C.J., Matheson & Moritz): Search and Seizure (Protective Sweep): Denial of motion to suppress the fruits of a protective sweep of a home is reversed because police had no basis to believe that other dangerous individuals were inside the residence. NOTE: Nelson did not own the home, and the panel remanded to the district court for a determination whether the homeowner consented to the search.

United States v. Larry Pam, No. 16-2171 (10th Cir., August 15, 2017) (Published) (Briscoe, Seymour & McHugh): Federal Sentencing Guidelines (ACCA): Pam successfully navigated post-conviction proceedings to attack the ACCA mandatory minimum of 15 years in light of Johnson from SCOTUS (invalidating the residual clause of the ACCA as unconstitutionally vague), even convincing the Circuit to grant him authorization to file a second collateral attack, and COA after that; but, alas, the panel finds a way to uphold his sentence by examining his priors based on their elements, thus avoiding application of the residual clause and affirming his sentence.




“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. Ronald F. White, Jr., No. 15-2027 (8th Cir., July 11, 2017) (en banc): Scienter: White was convicted of possession of an unregistered firearm, and possession of a stolen firearm. A panel reversed the stolen firearm count based upon insufficient evidence that White knew the firearm had been stolen, but affirmed the unregistered firearm possession count. In this opinion, the en banc court held that the unregistered firearm count must be reversed as well, based upon intervening SCOTUS authority that called into question on “outlier” circuit opinion regarding the proper mens rea requirement.

United States v. Jermaine Martez Barber, No. 16-41354 (5th Cir., August 3, 2017): Supervised Release: In this drug possession case, a substance-abuse treatment condition is vacated because it is ambiguous as to the scope of the district court’s delegation of authority to the probation office.

United States v. Kenneth Wayne Fisher, Jr., No. 16-3101 (8th Cir., July 3, 2017): Federal Sentencing Guidelines (Use of Minor): In this bank robbery case, Fisher had a minor female as a “navigator” in his crime spree and she waited in the car while he robbed the bank. The panel found that enhancement for “use of a minor” in commission of the crime was not supported.

United States v. Victor J. Stitt, II, No. 14-6158 (6th Cir., June 27, 2017) (en banc): Federal Sentencing Guidelines (ACCA): This opinion resolves an intra-circuit conflict whether a Tennessee statute for aggravated burglary is a violent felony under the ACCA. The en banc court held that it was not.




BONNIE BLUMERT, Oklahoma County PD, represented a client charged with three armed robberies and over 17-years-old at a Youthful Offender hearing before Judge McCray, and convinced the court to hold the client accountable as a Youthful Offender rather than an adult. The State has announced appeal, but this is a good result in what appears to be a tough case. Nice work, Bonnie!




STREET CRIME: The Enid Police Department has enough manpower now to re-institute the Street Crimes Unit which, according Chief Brian O’Rourke, works like this: “They’re going to be given problems and it’s their job to solve that problem.”

CASH SEIZED: A Sequoyah County deputy seized $100,000.00 in cash during a traffic stop in I-40.

D.A. LEGAL TRAINING: The District Attorneys around the state spent time recently at Sequoyah State Park Lodge receiving CLE and handing out awards.

NEW JUDGE: Gov. Fallin has appointed former prosecutor Maxey Reilly as the new Associate District Judge in Okfuskee County.

ARRESTED: In the wake of the Sheriff being indicted recently, a detention officer at the Garfield County Jail has been charged with taking money from an inmate during the booking process. Speaking of the Sheriff being indicted, District Judge Paul Woodward has recused from the case.

FORFEITURES: Law enforcement has taken in millions of dollars in forfeitures in 2015.

TRANSITIONS: New transitional living centers have opened in Altus for women dealing with alcohol issues.

OIDS: OIDS Executive Director Craig Sutter delivers a speech on the state of indigent defense.

ARRESTED: The FBI has arrested a man who planned to bomb a building in downtown OKC.

RIOT: Inmates rioted recently at the Nowata County Jail.



CAUGHT: A Rogers County escapee was caught…riding around in the Batmobile.

WHATACRIMESCENE: Police in Houston will no longer be allowed to use order numbers from Whataburger to mark crime scene items.

HIGH SPEED: Law enforcement in Pittsburg County reported a high-speed car chase with speeds reaching 160 mph before finally catching the driver…of a Honda Civic.

HAPPENINGS IN SOPER, OKLAHOMA: A former firefighter in Soper has been arrested for brawling and knocking out a city council member…with a fire extinguisher.

DIVERSION: A woman is suspected of stealing $94,000.00 worth of diamonds by having the diamond shipment diverted from FedEx.

DRUG TESTS: Bixby High School will now require drug testing of students…to get parking permits.

WRONG ORDER: A metro Burger King apparently got an order wrong at the drive-through…so the occupants fired a shot at the drive-through window.



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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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