OCDW 06.29.15



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).




No new cases.




United States v. Gary Sparks, No. 14-3120 (10th Cir., June 26, 2015) (Published) (Kelly, Tymkovich & McHugh): Sufficiency (Witness Tampering): Conviction for witness tampering is affirmed over claims relating to: 1) sufficiency of the evidence; 2) faulty jury instructions on a possible defense (plain error review).

United States v. Jeffrey Dan Williams, No. 14-5070 (10th Cir., June 23, 2015) (Published) (Bacharach, Baldock & McHugh) (N.D. Okla., Hon. James H. Payne): Guilty Pleas; Habeas Corpus (Second/Successive): Williams sought, after 14 years, to withdraw his guilty plea to various drug and firearms charges based upon newly discovered evidence that Tulsa Police officers committed fraud on the court. The district court agreed, but in this opinion the panel engaged in a tedious exercise whether the motion by Williams was a second/successive habeas attack which would deprive the district court of jurisdiction to vacate his convictions and require authorization. The majority held that the district court lacked jurisdiction (even though the district court itself stated that it acted sua sponte and on its own authority to address fraud on the court), but granted authorization for Williams to file a successive 2255. NOTE: Judge Bacharach dissented, noting that the district court invoked its inherent power to address fraud on the court.

United States v. Kennin Dewberry, No. 14-3018 (10th Cir., June 23, 2015) (Published) (Lucero, Matheson & Bacharach): Severance: Drug conspiracy conviction and sentence affirmed over claims related to: 1) sufficiency of the evidence to support the two conspiracy convictions; 2) sufficiency of the jury finding that he was accountable for 280 grams or more of crack; 3) imposition of 168 month prison term; and 4) denial of motion to sever.

United States v. Derek Zar, et al., No. 13-1111 (10th Cir., June 23, 2015) (Published) (Hartz, Matheson & Moritz): Speedy Trial; Interrogations (Fifth Amendment); Constructive Amendment: Mortgage fraud convictions for multiple defendants are affirmed over claims relating to: 1) speedy trial; 2) suppression of statements made to IRS agents (non-custodial, in-home interview); 3) various attacks on the jury instructions/constructive amendment to the indictment.




“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).


City of Los Angeles v. Patel, No. 13-1175 (U.S., June 22, 2015): Search and Seizure (Warrantless): A city ordinance requires hotels/motels to keep guest records for 90 days, and also provides that police may conduct spot checks at the register to see if the facility is in compliance and also makes non-compliance a misdemeanor. A group of hotel owners launched a Fourth Amendment challenge to this ordinance, arguing that it was facially unconstitutional because there was no provision allowing pre-compliance judicial review. In this 5-4 opinion, the Court agreed.

Johnson v. United States, No. 13-7120 (U.S., June 26, 2015): Federal Sentencing Guidelines (ACCA); Statutory Construction (Vagueness/Notice): The Armed Career Criminal Act punishes an offender severely for possessing a firearm if the accused has three or more “violent felony” convictions, defined to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” This is the so-called residual clause of the Act, and in this opinion the Court declared it unconstitutionally vague.




United States v. Watson, No. 14-1334 (2nd Cir., May 21, 2015): Search and Seizure (Patdown): A police officer in New York was searching for a robbery suspect named Chauncey Butler, but spotted Watson who allegedly a general physical resemblance to Butler. Watson denied being Butler and produced valid identification, but the officer still frisked Watson and found weapons and drugs. The district court suppressed the search and in this opinion the panel affirmed on the basis that the officer had no reasonable basis to believe that Watson was Butler.

Billy Ray Riley v. E.K. McDaniel, No. 11-99004 (9th Cir., May 15, 2015): Jury Instructions (Scienter): In this capital murder case out of Nevada, habeas relief is granted on a jury instruction issue: the jury was instructed that if it finds “premeditation” it has necessarily found “deliberation.” NOTE: This opinion is limited because of the odd procedural posture where it was not exhausted but no procedural bar existed, thus the court considered the claim de novo.

United States v. Tanguay, No. 14-1174 (1st Cir., May 22, 2015): Search and Seizure (Search Warrants; Franks v. Delaware): This is not a Franks issue per se, but it does touch upon a very interesting legal issue of whether a police officer affiant ever has a duty to inquire further into the veracity or credibility of an informant whose information supports probable cause. The district court below ruled that there is never such a duty, but the panel reversed and remanded for further fact-finding.

United States v. Sonia N. Flores-Rivera, et al., No. 10-1434 (1st Cir., May 22, 2015): Prosecutorial Misconduct (Brady): In this multi-defendant conspiracy case, the convictions of two defendants are reversed because the prosecutor failed to turn over a handwritten letter by the Government’s star witness that was mailed to the prosecutor.

United States v. James E. Johnston, No. 13-10097 (9th Cir., May 26, 2015): Child Porn; Double Jeopardy: Convictions for both receipt and possession of child porn violate Double Jeopardy, thus the conviction for possession is vacated.

Roger Price v. Warden Forcht Wade Correctional Center, No. 14-30349 (5th Cir., May 12, 2015): Ex Post Facto: Price was sentenced in Louisiana on a robbery charge, was paroled, and it was later revoked. However, at the time of the crime, the state could revoke only 180 days of good time credit; but an after- enacted law allowed the state to revoke all good time credit earned. The panel held that application of this after-enacted law to Price violated the ex post facto clause of the Constitution.




AMANDA EVERETT, Norman, secured a not guilty verdict in a jury trial where her client was charged with felony domestic assault and battery, as well as misdemeanor molesting property (busting out vehicle windows after the fight). The jury was out about an hour. Nice work, Amanda!

DAVID SMITH & SAM TALLEY, Norman, fought the State in a first-degree murder case in Cleveland County last week, and both were successful in convincing the jury that their clients were guilty of the lesser offense of accessory, rather than murder. This was a huge break for the clients, and good lawyering by David and Sam. Congrats!




OFFICER ARRESTED: A police officer for the city of Kiowa was arrested at a motel in Las Vegas in the company of a 15-year-old girl who had been reported missing. That does not sound like a good situation.

DIRECTOR: The Pardon and Parole Board will name a new Director next month, after Van M. Guillotte resigned abruptly after only 25 days on the job. Also, the Board has voted to grant a full clemency hearing to a woman serving a 30-year sentence for failing to protect her child, even though the actual abuser got just 2 years.

OSP DEATH: Officials at McAlester are investigating the death of inmate Justin England, who was found hanging in his cell last Monday.

KKK ACTIVITY: The KKK has been splashing northeastern Oklahoma with flyers in the wake of recent shootings.

CLEET INVESTIGATION: CLEET is investigating the Wagoner County Sheriff’s Office for training records irregularities.

EXECUTION ARTICLE: This is a pithy critique by The New Yorker of Oklahoma’s proposed use of nitrogen gas to carry out executions; also, executions in Louisiana are on hold for at least a year as the state sorts out its execution method.

COURTHOUSE FIRE: Someone at the Pottawatomie County Courthouse tried to burn down the courthouse, apparently in an effort to avoid court.

JAIL CONDITIONS: A family has launched a protest over conditions at the Oklahoma County Jail.

SINKING: The Law Enforcement Monument in Oklahoma City is in need of repair because it is sinking into the ground.

ROLLOVER: A Midwest City police officer was the victim of a hit-and-run which caused his patrol car to rollover.



The spirits, man…told him to burn down the house, but arson was the case that they gave him; the attempted robbery of Tulsa Taco Bell was thwarted when the window clerk punched one of the robbers in the face; it was a case of robbery…by toy dinosaur; apparently, a shotgun shell is not the ideal tool to remove a tree stump; stick’em up…and gimme your shoes!



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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: ©2005-2015 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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