OCDW 08.28.17



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. 15: COAL COUNTY: This county located in southeastern Oklahoma was organized at statehood in 1907. A Democratic member of the first legislature, Boone Williams, was from the town of Lehigh, and with his support the legislature designated Lehigh as the county seat of Coal County. However, this designation was controversial, and a special election was held in 1908, and the citizens selected the present-day county seat of Coalgate over Lehigh. In the true style of Oklahoma politics, it was found that more people voted in that election than were registered to vote, so Lehigh sued, but to no avail, and the city of Coalgate celebrated with a visit from the charismatic leader of the Socialist Party, Eugene V. Debs at a barbecue on July 4, 1908. If I have ever had a case in Coal County, I do not remember it (I think I have been to Coalgate once or twice, but have no recollection of being in the courthouse there), so I will put it down as a “no” which brings my county total to 10 out of 15 Oklahoma counties where I have appeared in court on behalf of a client.




Anthony Castillo Sanchez v. State, 2017 OK CR 22 (August 22, 2017): Death Penalty: In this second application for post-conviction relief in a death penalty case, the Court found a claim of racial disparity—supported in part by the recent Report of the Oklahoma Death Penalty Review Commission—procedurally barred and refused to consider it.

Elliot James Oakley v. State, No. C-2016-451 (Okl.Cr., August 24, 2017) (unpublished): Guilty Pleas; Standard of Review: Oakley pled blind to Murder in the First Degree in Seminole County before the Hon. George Butner, and sentenced to LWOP. In this opinion the Court affirmed, but the opinion is lengthy and contains a common fact pattern of a client asserting that he had a defense (alibi) but pled because trial counsel said that he could not win the case. Conflict counsel was appointed and made a good record. I included this opinion because Oakley contended that conflict counsel was ineffective, and although the Court denied the claim, it concluded that appeal was the first time that such a claim could have been raised, thus the claim was preserved. Also, the Court continues to recognize that a plea may be withdrawn when entered through inadvertence, ignorance, influence or without deliberation, as long as the accused bears the burden of showing one of these reasons and that there is a defense that should be presented to the jury.




United States v. John Eldridge Cone, No. 16-5125 (10th Cir., August 24, 2017) (Published) (Hartz, Matheson & Moritz) (N.D. Okla, Hon. Claire V. Eagan): Search and Seizure (Traffic Stops): Search after traffic stop upheld where officer asked about criminal history and travel plans (no causal connection between the travel-plans question and the discovery of the drugs).

United States v. Marvin Lee Ellis, No. 14-3165 (10th Cir., August 24, 2017) (Published) (Hartz & Phillips): Federal Sentencing Guidelines (Apprendi Issues); Standard of Review (Invited Error); Conspiracy: Conviction for drug conspiracy is affirmed, but a sentence of life is vacated because the jury never found that Ellis was individually responsible for the charged amounts, and this was not harmless. NOTE: This is a rare case where the panel rejected the Government’s contention that counsel invited the error here by not objecting to the verdict form, and in fact the panel found that if the Government wanted enhanced penalties then it should have requested a proper verdict form with the drug quantities.

United States v. Rodney Miller, No. 16-2229 (10th Cir., August 25, 2017) (Published) (Tymkovich, C.J., Ebel & Lucero): Federal Sentencing Guidelines (Crime of Violence): In this 2255 case, Miller contended that Johnson (which invalidated the residual clause of the Guidelines as void for vagueness), applied retroactively to him. The panel did not decide this question, but assumed that even if it did, the commentary specifically designated robbery, one of Miller’s priors, as a crime of violence; thus, Miller’s conduct was clearly proscribed and was not vague as to him.




“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. Daniel Brown, No 15-30148 (9th Cir., June 12, 2017): Child Porn; Right to Present a Defense: Brown was accused of conspiring to make a notice or advertisement seeking or offering child porn (an online bulletin board), but was prevented from arguing to the jury that the Government failed to prove that a closed-board involved a “notice” or an “advertisement.” The split panel held this was structural error which relieved the Government of its burden of proof, as well as a denial of the right to present a defense and IAC. NOTE: Judge Bybee dissented on the grounds that Circuit precedent interpreted an on-line closed bulletin board an “advertisement” as a matter of law and statutory interpretation.

United States v. Joseph B. Lewis, No. 16-3308 (8th Cir., July 27, 2017): Search and Seizure (Plain View and Officer Safety/Warrantless; Work Place Privacy): Two detectives entered Freaks Tattoo Shop without a warrant to talk to Lewis, who was a person of interest. The saw a gun on a shelf and seized it, then Lewis volunteered that he was a felon. The Government sought to justify the seizure on plain view and officer safety concerns, both of which the panel rejected.

United States v. Terry Pierre Louis, No. 16-11349 (11th Cir., July 10, 2017): Sufficiency: The Government’s evidence was insufficient to prove that Louis had knowledge that the boxes placed in the backseat of his car contained drugs.

United States v. Donald MacLaren, No. 16-6291 (4th Cir., August 2, 2017): Sexually Dangerous Person: Denial of a motion for a discharge hearing under the Adam Walsh Child Protection and Safety Act of 2006 is vacated because the district court applied the incorrect legal standard.







CHIEF LINKED: The new Chief of Police in Colbert has purportedly been linked to a neo-Nazi website, but he has denied the link, citing identity theft. The City of Colbert has hired three Chiefs of Police this year.

ADDICTION ISSUES: A surgeon-turned-addiction-lecturer will present free lectures in the metro area in September.

SWITCHEROO: District Attorney Craig Ladd (Carter County) has switched political affiliations from Democrat to Republican.

HOLTZCLAW: The appeal of former OKC police officer Daniel Holtzclaw featured an ex parte and in camera hearing, which was apparently related to personnel matters involving the State’s DNA expert.

HONORED: The Oklahoma County Law Library will be named after retiring district judge Bryan C. Dixon.

HONORED II: Assistant District Attorney Susan Meinders (Woodward) has been selected as the 2017 Northwest Oklahoma Pioneering Woman of Industry.

BODY CAMS: The Tulsa Police Department is moving forward with plans to equip officers and their vehicles with video cameras.

LAWSUIT: A group of inmates has sued Gov. Fallin and the Pardon and Parole Board over safety concerns and that the parole process is a sham, citing the fact that Oklahoma incarcerates women at a higher rate than any other state, and that more African-American men are behind bars in Oklahoma per capita than anywhere else in the U.S.

COMMUTATION: The Gov. of Arkansas has announced that he will commute the sentence of a death row inmate.

EXECUTION: Meanwhile, in Florida, death row inmate Mark James Asay was executed for murders in Jacksonville in 1987. Oklahoma has indicated that there will be no executions in 2017.

ROB NIGH: Read Frontier conducted an in-person interview with attorney and former Chief Public Defender in Tulsa County, Rob Nigh.

RIP: Former U.S. Attorney in Muskogee, Robert Bruce Green passed away recently.

CHIEF NAMED: Deputy Chief Brandon Berryhill has been named acting Police Chief in Broken Arrow.

D.A. FUNDS: The article details the over $100,000.00 received by the Pittsburg County District Attorney’s Office as a result of raid on businesses in 2015.

REMOVING HATE: A tattoo parlor in Sand Springs has offered free removal of gang or hate-related ink.

APPOINTED: Former House Speaker Kris Steele has been named by Gov. Fallin to the Pardon and Parole Board.

NEW STOP STICKS: Law enforcement have new stop sticks to use against fleeing suspects in car chases.

FACEBOOK EFFECT: A reserve deputy in Cleveland County has been fired for inflammatory speech that he posted on Facebook.

JAIL DEATH: The OSBI is investigating another death at the Oklahoma County Jail.



BUSTED: Police executed a search warrant in El Reno looking for evidence of child porn…and found the occupant of the home downloading child porn.

NO HONOR: A Rogers County man avoided capture by law enforcement…by using his own son’s name.

PRIORS: An escaped inmate has a prior arrest…for waving a Confederate flag and shouting racial slurs at a Toby Keith concert.

GOT A PROBLEM: An Oklahoma City man went gambling at a casino…robbed a bank…then went gambling again at another casino.

DARWIN: Burglary suspects in Tulsa fled the scene…leaving their IDs behind.




THURSDAY, OCTOBER 5, 2017: The Federal Bar Association presents the Twelfth Annual Willian J. Holloway, Jr., Lecture, “Observations on Our Newest Justice” by the Hon. Diane S. Sykes (7th Cir.) at the Oklahoma History Center, with a reception at 5:30 p.m. and the dinner and lecture at 6:30 p.m.



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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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