OCDW 02.09.15



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).




James Darren Colbert v. State, No. F-2013-1106 (Okl.Cr., February 4, 2015) (unpublished): Search and Seizure (Search Warrants; Stale Information): In this Trafficking case out of Osage County (the Hon. B. David Gambill, presiding), police sought a search warrant but failed to serve it within 10 days per statute (although they got a new warrant in the interim). Colbert attacked it on staleness grounds. The Court rejected his claim, noting that the affidavit sought evidence of gun ownership and possession by a convicted felon, and that neither of these were likely transitory in nature. NOTE: I included this case because it has a decent discussion and citations to the staleness doctrine.

Jordan Michael Heathco v. State, No. F-2013-547 (Okl.Cr., February 6, 2015) (unpublished): Insanity & Competency; Standard of Review: Heathco was convicted by jury in Kiowa County (the Hon. ) of First Degree Murder. The odd issue in the case deals with the verdict form since Heathco raised a defense of insanity. The trial judge modified the verdict form to include “by reason of insanity” following the pre-printed “not guilty” blank. But, as Heathco pointed out, there was no verdict form for a “regular” and simple “not guilty” verdict, regardless of sanity (but, unfortunately, trial counsel did not object to the verdict form). The Court found error, but concluded that it was harmless (primarily because the sole defense was insanity, and trial counsel seemed to confess that a simple not guilty was not possible). NOTE: Judge Johnson concurred in the result (joined by Judge Lewis), but noted her continuing disagreement with how the Court has been applying plain error analysis but conducting traditional plain error analysis and then tacking on an additional analysis of whether the error was harmless.




United States v. Michael Jay Hood, No. 13-6182 (10th Cir., December 17, 2014) (Published) (Matheson, Phillips & Moritz) (W.D. Okla., Judge DeGiusti): Search and Seizure (Reasonable Suspicion): A Terry stop and frisk is upheld when police in Oklahoma City were investigating robberies, and residents at an apartment directed them to Hood, who ran away.

United States v. Tarran Arnel Brinson, No. 13-5138 (10th Cir., December 8, 2014) (Published) (Holmes, Bacharach & McHugh) (N.D. Okla., Judge Frizzell): Experts (Child Prostitution Rings); Facebook: Conviction for trafficking in child prostitution is affirmed over several claims relating to: 1) Expert testimony regarding how child prostitution rings operate (no abuse of discretion); 2) admission of Facebook and text messages (waived); 3) hearsay (not admitted for the truth); 4) admission of an authentication form (not testimonial since the document was prepared to authenticate records, not to prove a fact at trial); 5) admission of evidence obtained during arrest (police had probable cause to arrest); and 6) sufficiency of the evidence.

United States v. Elder Geovany Sabillon-Umana, No. 13-1363 (10th Cir., December 8, 2014) (Published) (Gorsuch, Sentelle, Senior Circuit Judge for the D.C. Circuit & Murphy): Federal Sentencing Guidelines (Reasonableness): Odd case involving a drug conspiracy where the sentencing judge decided on an appropriate Guidelines level first (32), and then told the Probation Officer to present facts to support the range(???) The panel held that this was error, and remanded for re-sentencing.

United States v. Jay Benjamin Black, No. 14-1000 (10th Cir., December 9, 2014) (Published) (Gorsuch, Sentelle, Senior Circuit Judge for the D.C. Circuit & Murphy): Sex Offender Registration; Statutory Construction: One exception to the registration requirement is when the victim was at least 13 years old and the offender was not more than four years older than the victim. This appears straight-forward but actually is a little bit ambiguous. Black argued that this meant subtracting his age, 18, from the age of the victim, 14, which yielded 4 years, thus he does not have to register. The Government argued that birthdates must be consulted and calendar year time calculated. The panel sided with the Government.




No new cases.


“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).





United States v. Siamak S. Fard, No. 14-1221 (7th Cir., January 7, 2015): Guilty Pleas: Fard’s blind guilty plea to one count of wire fraud is vacated because the record reflected that he did not fully understand the nature of the plea, and thus it was not knowing and voluntary.

United States v. Jeremy S. Cary, No. 14-1961 (7th Cir., January 6, 2015): Supervised Release: Special conditions relating to a ban on alcohol and mood-altering substances, as well as computer monitoring software, are vacated and remanded.

United States v. Michael J. Borostowski, No. 13-3811 (7th Cir., December 31, 2014): Interrogations (Fifth Amendment): Denial of a suppression motion is reversed because Borostowski was in custody at his home when questioned by officers who were there serving a warrant.

United States v. James Barta, No. 13-3208 (7th Cir., January 28, 2015): Entrapment: Barta was set up to bribe a fictional county official in order to obtain a government contract. The panel reversed, holding that Barta had been entrapped as a matter of law.




As the Tenth Circuit does occasionally, the judges will travel outside of Denver to hear arguments in pending cases—and this week the venue is the Dick Bell Courtroom at the Oklahoma University College of Law in Norman. The arguments will take place over two days, this Tuesday and Wednesday (February 10 & 11, 2015).

A list of the cases can be found here, and it looks like two panels will be present, one consisting of Judges Bacharach, Baldock, and McHugh; and the second consisting of Judges Hartz, Holmes and Phillips.

Several of the arguments involve criminal cases, so it might be a treat if you can make it out to see them, especially if you have never argued before the Circuit. It would be a great experience without having to fly to Denver. Most of the arguments occur in Denver, but I have argued cases in Tulsa and Salt Lake City over the years.




MISTY FIELDS, Tulsa, won a jury trial last week in a case in which her client was charged with molesting two girls left in his care. These are tough cases to defend. Nice job, Misty!

TAYLOR STEIN and KEN SUE DOERFEL, Lawton, secured a not guilty verdict in Lawton in a drug Trafficking case, attacking how the police treated their client differently than other passengers in the car. Nice work, Taylor and Ken Sue!




OCCA FINALISTS: The three finalists for the slot on the Oklahoma Court of Criminal Appeals are: Jennifer K. Miller (Assistant Attorney General in the Criminal Unit); Danny G. Allen (former judge from Perry); and Robert L. Hudson (former District Attorney in Guthrie). I believe that Judge Allen would make an excellent judge on the Court.

MENTAL HEALTH COURT: Surprisingly, only 16 out of our 77 counties have Mental Health Courts.

15 APPLICANTS: 15 attorneys have applied for the vacant judgeship for McClain and Garvin Counties.

SECRETARY ACCUSED: In this cautionary tale, a secretary at a law firm in Pryor has been accused of facilitating an inside robbery of several guns from the firm’s offices.

ANGRY JUDGE: An angry Judge Ray C. Elliott (Oklahoma County) threated to cite the Commissioner of the Oklahoma Health Department for contempt because a defendant whom he had ordered to undergo psychiatric treatment had instead sat in jail for six months.

JAILER ARRESTED: A jailer at the Muskogee County Jail has been arrested for smuggling contraband.

SENTENCE MODIFICATION: Judge John Canavan has modified a 45-year sentence imposed upon a school teacher convicted of child porn and sexual exploitation of her students. Judge Canavan reduced the sentence by 10 years.

OFFICER ARRESTED: A Coffeyville police officer has been arrested in a Tulsa prostitution sting operation.

CITY ATTORNEY: Lou Ann Moudy has been named city attorney for the City of Okmulgee.




THURSDAY, FEBRUARY 12, 2015, 12:00 noon: The Oklahoma County Criminal Defense Lawyers Association presents a one-hour luncheon with featured speaker Michael Johnson on trial strategies (he won a not guilty verdict this month in Oklahoma County). The seminar is good for one hour of CLE and will be held at the Norick Library (downtown OKC) in the Fourth Floor auditorium.

THURSDAY, MARCH 26 (Tulsa University Law Moot Courtroom) & FRIDAY, MARCH 27 (Oklahoma Bar Center), 2015: The Art of War: Prepare Your Criminal Trial Notebook for Battle. This appears to be a good CLE, but there is not much detail on the Bar Association web site as of yet.



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