OCDW 01.15.18



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. 27: GRANT COUNTY: Grant County is rural area in north-central Oklahoma, and the tiny town of Medford is the county seat (I grew up in the tiny town of Garber, Oklahoma, and we played Medford in sports every year. They had a very nice, lush football field every year). It is named for President Ulysses S. Grant. I have had several cases there, which brings my county total to 17 out of 27.




No new cases.




United States v. Thomas Jeremy Abeyta, 17-1025 (10th Cir., December 18, 2017) (Published) (Briscoe, Ebel & Phillips): Federal Sentencing Guidelines (Municipal Convictions): A conviction for “damaging, defacing or destruction of private property” in Denver municipal court was used to enhance the sentence by one level in this case where Abeyta pled guilty to felon in possession of a firearm. The panel held that this was error since the municipal offense does not qualify because it does not necessarily violate Colorado state criminal law.

United States v. Stephen D. Bagley, No. 16-3305 (10th Cir., December 18, 2017) (Published) (Bacharach, McKay & Murphy): Search and Seizure (Protective Sweep): Denial of a motion to suppress is reversed because the protective sweep was improper.

United States v. Phillip Angel Garcia, No. 17-2019 (10th Cir., December 18, 2017) (Published) (Tymkovich, C.J., Hartz & O’Brien): Federal Sentencing Guidelines (Crime of Violence): The opinion has a pithy opening paragraph: “More snow is here added to the Johnson avalanche. Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II). In what has become a common refrain in a host of diverse circumstances, Phillip Angel Garcia claims the New Mexico robbery statute does not satisfy the element of violent physical force necessary for an ACCA sentencing enhancement. He is wrong; it does.”

Todd Newmiller v. Rick Raemisch, No. 16-1396 (10th Cir., December 18, 2017) (Published) (Tymkovich, C.J., Seymour & McHugh): IAC: A state prisoner sought habeas relief on an IAC claim, alleging that his counsel failed to call expert witnesses to rebut the State’s expert medical testimony. The panel rejected this claim under the AEDPA deference provisions.

United States v. Richard M. Arnold, Sr., No. 17-6038 (10th Cir., December 27, 2017) (Published) (Tymkovich, C.J., Matheson & Bacharach) (W.D. Okla., Hon. Timothy D. DeGiusti): Forfeiture: In this fraud case, Arnold claimed that the district court erred in imposing an order of forfeiture after sentencing, and failing to require the Government to use forfeited proceeds to offset the restitution he owed to his victims (which would lower the total amount of restitution and forfeiture he was required to pay). The panel rejected these claims and affirmed.




“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).


Keith Tharpe v. Eric Sellers, Warden, No. 17-6075 (U.S., January 8, 2018) (per curiam): Habeas Corpus (COA; Capital Habeas Cases); Jurors: In this murder case out of Georgia, Tharpe obtained an affidavit from a white juror indicating racial animus. The state courts and the lower federal court held that any claim based upon it was procedurally defaulted, and the Eleventh Circuit denied a Certificate of Appealability because a lack of showing of prejudice. The Court reversed, 6-3, on the issue of whether a COA should issue. NOTE: Justice Thomas dissented, taking the majority to task for “ceremonial handwringing” over racial issues.




United States v. Andrew Gordon, No. 16-1896 (1st Cir., November 7, 2017): Statutory Construction: Gordon hired a hitman to murder is wife; then sought to hire a second hitman to kill people related to the first effort. The panel affirmed for the most part, but held that, under 18 U.S.C. 1958(a) (using facilities of interstate commerce in connection with the hiring of a person to commit a murder), the unit of prosecution is a single plot to murder a single individual, not the number of times that the facilities of interstate commerce are used. Thus, the panel ordered the five counts merged and remanded for re-sentencing.

United States v. John D. Gries and James McCullars, No. 15-2432 (7th Cir., December 7, 2017): Double Jeopardy: At sentencing in a child porn case involving multiple counts, including a count of engaging in a child-exploitation enterprise (which involves acting in concert with three or more persons), the district court erred in not considering the conspiracy counts as lesser-included offenses of the enterprise count.

United States v. Marcus L. Harris, No. 16-4546 (4th Cir., December 19, 2017): Supervised Release: Not a winner, but this case involves a revocation of supervised release, and then another revocation, which is sometimes confusing about how much the court can revoke. This opinion explains the law on this issue.

United States v. Darryl Jackson, No. 16-2415 (6th Cir., December 5, 2017): Federal Sentencing Guidelines (Use of Firearm): Jackson negotiated sales of guns and drugs—but did not actually bring any drugs or guns to either sale. The panel held that enhancement for use of a firearm in connection with a felony offense was improper.




JOI E. MISKEL & ANGELA SINGLETON, OKC, heard a “not guilty” verdict in the courtroom of the Hon. Glen Jones last week in a trial where the client was accused of felony murder and attempted robbery. The rec was life with the first 35 years to do(!) Client had no priors and spent the last few years in jail, but got to celebrate his birthday as a free man. Good job, Joi and Angela!

BRECKEN WAGNER & BLAKE LYNCH, McAlester, assisted a 72-year-old woman from Savanna who was charged with pointing a firearm at children. The charge dropped to a misdemeanor until it was dismissed altogether, and she even got her guns back (check out the pic). Nice work, Brecken and Blake!

MIGUEL GARCIA & ERIC BAYAT, OKC, represented an 18-year-old client charged with sexual battery in the courtroom of the Hon. Michele McElwee. The complaining witness was also 18-years-old, and in this he-said-she-said case, the defense secured an instruction on misdemeanor A&B, which the jury believed, saving the client from sex offender registration and a felony conviction. That is a good win. Terrific job, Miguel and Eric!




TIP-TOP: Washington County Commissioners took a tour of the jail and declared it to be in tip-top shape.

BONNIE & CLYDE: The Enid News presented its third installment on the exploits of Bonnie and Clyde in Northwest Oklahoma.

LOST BET: District Judge Lori Walkley (Cleveland County) lost a football bet and had to wear a Georgia Bulldogs shirt to court.

WE’RE No. 2: Oklahoma ranks behind only Louisiana on the rate of incarceration. THIS article details some of the reasons why and an increase in life and LWOP sentences. On the bright side, over 200 sentences were deferred in Cherokee County, which has to be a good trend.

SUSPECT ARREST: An African-American man in Tulsa felt like he was racially profiled during a traffic stop.

GOOD MARKS: Despite some high-profile cases, Oklahoma has received high marks for its efforts at combatting child sex trafficking.

FORFEITURE: Oklahoma law enforcement received about double the cash forfeited in 2017 as in the previous year.

TRANSITIONS: President Trump has convened a panel to study ways to re-integrate non-violent offenders back into society.

AMNESTY: Ponca City has announced an outstanding fine/warrant amnesty for the spring.

SHORTAGE: The shortage of court reporters in Oklahoma seems to be a real thing, and the State is taking steps to deal with the issue.

UPSKIRTING: This is apparently a problem that needs to be addressed, according to the Oklahoman, in the wake of the arrest of an aide to Gov. Fallin.

SWORN IN: Scott Brockman has been sworn in as a new Special District Judge in Cleveland County.

CHARGED: A former Kay County Detention Officer has been booked into the jail, accused of embezzlement.



BURNIN’ DOWN THE HOUSE: A Texas man was acquitted by a jury…of burning down his own house.

TIMING: A man who returned to Laverne, Oklahoma for a funeral was stopped for speeding…and also found out about an outstanding seatbelt warrant, but this story has a happy ending with deputies assisting the hapless man.

LAWTON: A man reported that his car had been keyed…and also covered with food. Lawton.

HEADLINE: “Man Steals Guns from Pawn Shop; Mother Drives Him to Turn Himself In.”

WANTS A REFUND: A suspect asked for a refund on his coffee after an armed robbery goes wrong.

#CIA; #NOT CIA: Two burglary suspects in Glenpool claimed to be CIA Agents looking for “federal marijuana.”

DIGGING UP CRYSTALS: A man on meth was found by police laying on the ground next to a semi truck, digging a hole with a knife, explaining to officers that he was just fine and was just “digging up crystals.” Reminds me of that scene in Breaking Bad where Jessie starts digging a hole in the front yard and the other meth tweakers think it is a perfectly logical thing to do.



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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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