State v. Serrato, 2007 OK CR 44 (December 18, 2007):  Wiretaps:  This case presents, in the words of the Court, "the novel question" of whether the judicially authorized interception of cell phone communications violates the Security of Communications Act.  OBNDDC agents obtained a wiretap authorization from the Presiding Judge of the Court of Criminal Appeals to intercept and eavesdrop on calls between Serrato and others suspected of participating in a drug trafficking conspiracy.  The central issue in the case revolves around whether intercepting cell phone communications was authorized at the time they were performed in this case because Congress gave the states only so long (two years) to conform their statutes and Oklahoma apparently did not act in time.  Based on this, Judge Twyla Gray in Oklahoma County granted Serrato's motion to suppress.  The Court of Criminal Appeals reversed, holding that cell phones were covered under the original language and thus any subsequent language does not matter; and also the Supremacy Clause operated to supplant state law when Congress amended Title III on this topic.


Tenth Circuit

United States v. Rakes, No. 06-4208 (10th Cir., December 26, 2007) (Published):  1. Conspiracy; 2. Sufficiency of the Evidence:  This case began with a threatening letter sent to an Assistant United States Attorney in Utah.  The letter stated, "You stupid bitch!  It is because of you that my brothers are in jail for the Rico.  I know you live on the [street name redacted].  We will get you.  til the casket drops."  The letter was traced back to April Dowding, a friend of two RICO defendants in a case involving a white supremacy group prosecuted by the Assistant.  Dowding identified Rakes as being involved in the writing/mailing of the letter (along with others).  Rakes was thereafter indicted for Mailing a Threatening Communication and Conspiring to Impede or Injure an Officer.  Rakes entered a plea to Misprision of Felony in exchange for an agreement that the appropriate sentence was 09 months imprisonment (below the 18-24 months suggested by the Guidelines).  At sentencing, the District Court received a victim impact letter from the Assistant, but did not disclose the letter either to the defense or counsel to the Government.  As a result of the letter, the District Court rejected the plea agreement and Rakes elected to proceed to trial.  At the conclusion of the (flimsy) evidence, the District Court acquitted Rakes of the Mailing count, and the jury found him guilty of the Conspiracy count.  This time, the District Court disclosed the letter prior to sentencing.  Oddly, since the offense had no assigned Guidelines section, the probation office analogized it to another offense and ultimately sentenced Rakes to 63 months.  Although the panel recognized that Rakes' claims of error had "force" it nonetheless affirmed over his claims of 1) insufficient evidence of a conspiracy; 2) failure of the District Court to disclose the letter at the first sentencing hearing; 3) and use of the wrong Guidelines section as the most analogous.

United States v. Altamirano-Quintero, No. 06-1254 (10th Cir., December 28, 2007) (Published):  Federal Sentencing Guidelines; Safety Valve:  Altamirano-Quintero was convicted of drug conspiracy and sentenced to the mandatory minimum of ten years.  In this appeal, he argued that the District Court should have applied the "safety valve" and sentenced him to a lesser term.  The panel disagreed and affirmed, upholding the determination of the District Court that he was not eligible for the safety valve reduction because he had not provided to the Government with all the information he had concerning his offense.  NOTE:  Judge Holmes (formerly of the U.S. Attorney's Office here in OKC) penned an interesting concurrence, taking the majority to task for failing to recognize that Altamirano-Quintero could have reasonably believed that the Government conceded in the written plea agreement that he met the safety valve conditions, but concluding ultimately that there was no reversible error.

United States v. Shurtz, No. 07-3072 (10th Cir., December 19, 2007) (Published):  Shurtz made the enterprising argument that, in his drug prosecution, 21 C.F.R. sec. 1308.12 required the Government to prove to the jury that the methamphetamine would have a stimulant effect on the central nervous system.  The District Court disagreed and the panel affirmed.

United States v. Fell, No. 06-1438 (10th Cir., December 18, 2007) (Published):  Federal Sentencing Guidelines; Crime of Violence:  In-depth treatment of the ever popular question of what constitutes "violent felony" for purposes of the ACCA.  In this case, the panel held that the crime of Conspiracy to Commit Second Degree Burglary under Colorado law was not a violent felony for ACCA purposes.

United States v. Hamilton, No. 06-5231 (10th Cir., December 18, 2007) (Published):  Guilty Pleas:  Hamilton entered guilty pleas to Possession of 50 grams or more of Cocaine Base w/Intent and Possession of Firearms in Furtherance of a Drug Trafficking Offense.  The PSR treated him as a career offender and suggested a Guidelines range of 322-387 months.  However, prior to sentencing, Hamilton moved to withdraw his pleas on the basis of IAC in that counsel failed to tell him that he was a career offender facing a range of 322-387 months.  The District Court denied his motion and sentenced him to 322 months.  The panel affirmed, applying the seven factors governing plea withdrawals in the circuit.

United States v. Lyons, No. 06-3111 (10th Cir., December 18, 2007) (Published):  Searches and Seizures; Traffic Stops:  Lyons entered a conditional plea to drug possession based on a traffic stop in Kansas and was sentenced to 151 months.  The circuit then produced yet another abysmal traffic stop case which allows police discretion to use minor traffic violations to transform otherwise innocuous traffic stops into vehicle searches.  In this case, the officer noticed that the spare tire hung too low which caused him to be suspicious of drug activity; so, he followed the vehicle and stopped it because the tag sticker was obscured.  This lead to a "warning" ticket and subsequent "consent" to search the spare tire.  This is a typical case from the circuit on these issues.

United States v. McComb, No. 07-5003 (10th Cir., December 18, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  Prior to his sentencing on drug charges, McComb suffered a stroke which left him mentally and physically debilitated.  Nevertheless, the District Court refused his request for a variance and sentenced him to the bottom of the Guidelines range of 135 months.  The circuit found no abuse of discretion (applying the presumption of reasonableness under Rita).  NOTE:  The panel discusses briefly the new Supreme Court cases of Gall and Kimbrough, but those cases appear to not have much force on the facts of this case and the discussion of them is limited.

United States v. Revels, No. 06-5223 (10th Cir., December 20, 2007) (Published):  Interrogations/Fifth Amendment:  This is a refreshing case from the circuit holding that Revels was in "custody" for Miranda purposes, she was not given the warnings, and thus the District Court was correct in suppressing her statements (Senior Judge Cook in the Northern District at Tulsa).  This case is similar to Colonna out of the Fourth Circuit, featured below.  Police executed a search warrant at a home wherein Revels lived with her boyfriend and two infant children.  When the police raided the home, Revels was in her underwear.  After ransacking the home for a while, they allowed her to dress and care for the children (one of whom required feeding through a tube in his stomach).  After about 30 minutes, Revels and the boyfriend were separated and interviewed.  No warnings were given and Revels made incriminating statements.  Once she was arrested and transported to the police station, she was given warnings and asserted promptly her right to counsel.  The panel held:  "Taking the totality of the circumstances into account, we conclude that a reasonable person in Revels' position would have considered herself under a degree of restraint equivalent to formal arrest and that officers should have extended Miranda advisements prior to their questioning.  The undisputed facts demonstrate that the officers' actions created the type of coercive environment that Miranda was designed to address."

United States v. Williams, No. 06-5036 (10th Cir., December 20, 2007) (Published):  Speedy Trial:  This is an intriguing winner on Speedy Trial grounds in which the panel dismissed an indictment on this basis after jury trial.  The opinion is complete with graphs showing the nature of the violation (in full color) and reads like a primer on the Speedy Trial Act.  The conviction is reversed and remanded to the District Court to determine whether the violation should result in dismissal with or without prejudice.  


United States Supreme Court

No new cases.

However, the recent decisions in Gall and Kimbrough (see last issue of the OCDW) are being felt in the federal courts of appeals.  Opinions from the Fourth Circuit and the Eleventh Circuit indicate that the federal appellate courts have gotten the message that the District Court sentence is to stand unless there is an abuse of discretion, even when the sentence is below the applicable Guidelines range.  See United States v. Pauley, No. 07-4270 (4th Cir., December 28, 2007) (sentence of 42-months for possession of child porn affirmed over the Government's appeal when the Guidelines called for 78-97 months); United States v. McBride, No. 06-16544 (11th Cir., December 28, 2007) (sentence of 84-months for distribution of child porn affirmed over Government's appeal when the Guidelines called for 151-188 months).

Pauley in particular contains a very good discussion of the history of federal sentencing both pre- and post-Booker. 


Other Cases of Note

United States v. Colonna, No. 06-5237 (4th Cir., December 20, 2007):  Interrogations/Fifth Amendment:  This is a solid Miranda winner where federal agents (23 of them!) executed a search warrant at a home where child porn was traced via computer (another file-sharing case).  Colonna lived in the upstairs of a large home.  Agents woke everyone up while they searched and eventually directed Colonna to a car where they told him he was not under arrest but questioned him about the child porn.  The District Court denied the motion to suppress his statements but the panel reversed on the basis that, notwithstanding the fact that agents told Colonna he was not under arrest, a reasonable person in his position would have felt his freedom was curtailed to a degree associated with a formal arrest.

United States v. Stout, No. 06-6353 (6th Cir., December 20, 2007):  "Bad Acts":  This is a solid "bad acts" winner on the Government's appeal when the District Court granted a pre-trial motion in limine to prevent the Government from introducing the fact that Stout had a prior conviction for installing a video camera in the home of family friends and taping their 14-year-old daughter take a shower.  He was on trial for Possession of Child Porn.  The District Court held that the prior conviction was "creepier" than the charges for which he was on trial and excluded evidence of the prior conviction on the basis that it would be more prejudicial than probative.  The panel, in this split opinion, held that exclusion of the evidence was not an abuse of discretion. 


Victories

"Send lawyers, guns and money, the shit has hit the fan."
--Warren Zevon, "Lawyers, Guns and Money" (song) (1978)


None reported.



Hearsay

NEW JERSEY BANS CAPITAL PUNISHMENT:  On Monday, December 17, 2007, New Jersey Gov. Jon S. Corzine signed into law a bill that abolished the death penalty in the state.  Press reports state that this action made New Jersey the first state in more than 40 years to abolish the death penalty.  Notably, the elimination of the death penalty benefits death row inmate Jesse Timmendequas, the killer of seven-year-old Megan Kanka, the 1994 crime that inspired the proliferation of "Megan's Laws" around the country which require sex-offender registration.

ANOTHER CAPITAL CASE EXONERATION:  This press release details that prosecutors in North Carolina dismissed capital murder charges against Jonathon Hoffman who was convicted and sentenced to death for the 1995 shooting death of a jewelry store owner.  No physical evidence tied Hoffman to the crime and the defense was not informed that the prosecutor had granted significant benefits to its star witness/snitch.

ANOTHER DEATH SENTENCE FOR CHILD RAPIST:  Prosecutors in Louisiana convicted another repeat child rapist and secured the death penalty.  Oklahoma has a similar law, but I am not aware that an Oklahoma jury has imposed death in such a case.   



                      ------LEGAL CALENDAR------

TUESDAY, JANUARY 8, 2008:  OIDS is sponsoring a seminar from 11:00 a.m. to 3:00 p.m. (note the time change) in Room 104 of the State Capitol Building.  The seminar will focus on the use of the ABA Guidelines in capital cases and the importance of mitigation evidence.  Presenters include Robin Maher, Director of the Death Penalty Representation Project, and Russ Stetler, an experience capital case litigator.  OIDS is in the process of obtaining CLE approval.  You can obtain the registration form HERE.

TUESDAY, JANUARY 8, 2008:  The death penalty case of Littlejohn v. State will be argued at the Court of Criminal Appeals at 10:00 a.m.  Defense counsel is David Autry.  If you have an argument coming up or just want to see a good lawyer argue a case before the Court, this would be a good one to see.

WEDNESDAY, JANUARY 23, 2008:  OCU School of Law will host a reception for the Judges of the Tenth Circuit from 6:00 p.m. to 6:30 p.m. at the Skirvin Hotel in downtown OKC.   



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