Rochon v. State, 2008 OK CR 1 (January 8, 2008):  1.  Searches and Seizures; Search Warrants; Detention of Occupants; 2.  Double Jeopardy/21 O.S. 11:  Rochon was convicted at jury trial in Tulsa of four counts:  Trafficking (Meth), Possession of Marijuana w/Intent, Failure to Obtain a Tax Stamp, and Unlawful Possession of Paraphernalia.  The police secured a warrant to search Rochon's house.  However, before they arrived, Rochon left the residence and drove away.  He was stopped one mile away from his house by an officer who asserted that he was not wearing a seatbelt.  However, the Court held that in addition to the seatbelt violation, the police had authority to detain Rochon by virtue of the warrant(??!!)  This appears to me to be a very strained reading of Supreme Court precedent.  The Court did grant relief on a double punishment claim because the drugs were found in the same container; thus, Count II (Possession of Marijuana w/Intent) was reversed with instructions to dismiss.

Carter v. State, 2008 OK CR 2 (January 17, 2008):  1. Wire Taps; 2. Experts; Drug Jargon:  Taleeta Carter was convicted by jury in Lincoln County of Conspiracy to Traffick Methamphetamine and Unlawful Use of Communication Facility to Facilitate a Felony.  The Court AFFIRMED over several claims of error.  The primary evidence presented by the State consisted of phone calls intercepted between between Carter and the conspiracy leader and also testimony from a police officer as an "expert" in explaining the drug jargon used in the calls.  Concerning the calls, trial counsel failed to object properly at trial to the phone calls and thus the "minimization" efforts of the police were reviewed for plain error (a very deferential standard of review) as was the claim that the calls contained other bad acts.  Also, there was no error in allowing the "expert" testimony of the police officer concerning the drug jargon.

Robert Eugene Schwab v. State, No. M-2007-192 (Okl.Cr., January 14, 2008) (unpublished):  Retroactivity:  Schwab was tried by jury in Creek County on three counts of Transmitting a Threatening Letter in violation of 21 O.S. 1304.  However, the jury convicted him of the lesser included offense of Threats or Harassment by Telephone or Other Electronic Communication.  The State's theory was that Schwab had composed and transmitted threatening e-mails.  However, at the time Schwab composed the e-mails, the statute governing that offense had not been enacted; thus, what he did was not a criminal offense at the time he did it.  Reversed and remanded with instructions to dismiss.  NOTE:  This issue does not come up very often, but like statute of limitations concerns, we need to be vigilant in cases where it applies because it is a dead-bang winner.


Tenth Circuit

United States v. Gachot, No. 07-6061 (10th Cir., January 10, 2008) (Published):  Jurisdiction:  Gachot plead guilty to his part in operating a cockfighting facility within Indian Country in Caddo County, Oklahoma.  He made an enterprising argument that under federal law governing crimes in Indian Country (the Indian Country Crimes Act) that victimless crimes in Indian Country do not vest the District Court with jurisdiction under the "Indian against Indian exception" to the ICCA.  However, since the Government dismissed the original indictment and charged him under a different statute that had no such jurisdictional issues, the conviction was AFFIRMED.

United States v. Pethick, No. 06-1525 (10th Cir., January 17, 2008) (Published):  Appellate Jurisdiction:  This is a rare appeal from a misdemeanor DUI conviction in federal court (it occurred on a military base).  Pethick was tried by jury and sentenced to 15 days in the clink w/incidentals.  However, this appeal does not address any aspect of DUI law; rather, it deals with a quirky issue of appellate jurisdiction.  In this case, the District Court made key pre-trial decisions in the case and presided over the trial.  However, the judge became ill and could not finish the trial, so a magistrate stepped in.  At the end of the trial, the magistrate presided over the sentencing but Pethick wanted to appeal only the pre-trial orders made by the Article III judge.  The question was whether the appeal should be to the District Court (which has jurisdiction over the decisions of magistrates) or to the Circuit (which has jurisdiction over the decisions of the District Court).  HELD:  Jurisdictional statutes are strictly construed and thus this is an appeal of a magistrate's decision which should be reviewed by the District Court.

United States v. Burkley, No. 07-6000 (10th Cir., January 15, 2008) (Published):  1. Searches and Seizures; Traffic Stops; 2. Severance:  Burkley was convicted at jury trial in the Western District of Oklahoma of Possessing Marijuana w/Intent to Distribute, Carrying a Firearm During and in Relation to a Drug Trafficking Crime, and Being an Unlawful User of Marijuana in Possession of Firearms and Ammunition.  He was sentenced to 120 months.  His initial arrest stemmed from a traffic stop (failure to signal).  The officer noticed a strong odor of marijuana emanating from the car and Burkley admitted that he had no driver's license.  Burkley argued a suppression issue that under state law, traffic must be affected by the failure to use the turn signal; and that the municipal ordinance was inconsistent with state law.  The panel refused to certify the question to the Oklahoma courts and held that the District Court did not err in concluding that Burkley violated state law.  The panel also found no error in the District Court's refusal to sever count one from the other counts, sufficiency of the evidence claims, and in the order of forfeiture.  AFFIRMED.

United States v. Hill, No. 07-3034 (10th Cir., January 15, 2008) (Published):  Possession of Firearm by Felon:  Hill plead guilty to Felon in Possession of a Firearm, reserving the right to appeal the question of whether his prior conviction (in Kansas) for criminal possession of a firearm was a qualifying felony under 18 U.S.C. sec. 922(g)(1) because, under Kansas law, it carried a maximum sentence of eleven months as to Hill.  In a thorough analysis of Kansas law, the panel held that this prior conviction does not qualify as a felony and thus Hill's conviction must be REVERSED.

United States v. Martinez, No. 07-4040 (10th Cir., January 15, 2008) (Published):  Searches and Seizures; Inevitable Discovery:  This is a traffic stop case out of Utah where the panel upheld the denial of the motion to suppress, concluding that the initial stop was lawful and that the resulting discovery of drugs was "inevitable" since neither Defendant had a valid driver's license and police would have conducted an inventory search after impounding the car.


United States Supreme Court

Wright v. Van Patten, No. 07-212 (U.S., January 7, 2008):  Habeas Corpus; AEDPA Deference:  In this federal habeas corpus case, Van Patten had argued successfully in the court below that his attorney was presumptively ineffective (under Cronic, not Strickland) because the attorney participated in a plea hearing by speaker phone instead of in person.  The Supreme Court disagreed, holding that no case from the Court addressed this issue; thus, the holding of the state courts below cannot be said to have been contrary to clearly established federal law.  NOTE:  The Court did not decide whether telephone-presence of counsel at pleas is constitutional; only that no case from the Court has addressed this particular question, thus habeas relief is not warranted in this case.

Arave v. Hoffman, No. 07-110 (U.S., January 7, 2008):  Appellate Jurisdiction; Mootness:  This is an odd, brief, per curiam opinion in a capital case where Hoffman was granted relief in the court below on his IAC claims with regard to both sentencing and with respect to plea negotiations.  However, Hoffman apparently wished to proceed with his re-sentencing and not pursue any relief on the plea negotiation claim.  So, Hoffman filed a Motion to Vacate Decision Below and Dismiss the Cause as Moot.  The Court granted Hoffman's motion.  I suspect that Hoffman feared (rightly so) that the Court would find error with the resolution of the case by the Ninth Circuit, leaving him in a worse position (although it is unclear from the opinion).


Oyez! Oyez! Oyez!

The Oyez website has archived the oral arguments in the Supreme Court for a while now, but I have not been back there in some time.  If you have not checked out the site lately, you are in for a treat. 

The site not only has the audio of the oral arguments, but also a scrolling transcript as well as photos of the Justices when they are speaking.  The interface makes it very easy to follow.  HERE is a link to the argument of a couple of weeks ago in the Kentucky lethal injection case, Baze v. Rees.  If you want to read the transcript only, it can be found HERE.


Other Cases of Note

United States v. Grossman, No. 06-2310 (6th Cir., January 18, 2008):  Federal Sentencing Guidelines; Reasonableness:  A split panel upheld a below-Guidelines sentence for Possession of Images of Minors Engaged in Sexual Activity.  This is an interesting application of Gall and Kimbrough.   The Guidelines range was calculated at 135-168 months, but the statutory maximum was 120 months.  The District Court sentenced Grossman to 66 months followed by 10 years of supervised release.  The sentencing judge was "shocked" and "troubled" by the Guidelines enhancements and stated that in his view "the Guidelines produced a calculation that was 'not fair' and 'not reflective of what [Grossman] did.'"  The judge stated further:  "This is what happens when you take judging, which is a judge's job, and you give it to a commission and say, add mathematical calculations and come up with a presumed sentence from that."

United States v. Fancher, No. 06-4913 (4th Cir., January 17, 2008):  Federal Sentencing Guidelines; Notice:  480-month sentence for one count of Receiving Child Pornography is vacated because the District Court did not give Fancher sufficient notice that it was considering an above-Guidelines sentence.

United States v. Swafford, No. 06-5878 (6th Cir., January 17, 2008):  1. Conspiracy; 2. Variance; 3. Multiplicity:  Complex conspiracy case where the Government alleged two counts of a single conspiracy, but the evidence at trial showed multiple conspiracies with different participants.  This was a fatal variance.  Also, the panel held that the trial court erred in denying Swafford's motion to strike or elect the substantive counts on the basis that they were multiplicitous.

United States v. McGhee, No. 07-1064 (8th Cir., January 16, 2008):  Federal Sentencing Guidelines; Reasonableness:  Another application of Gall in a case where McGhee plead guilty to Possession w/Intent to Distribute More Than 50 Grams of Crack and Possession of a Firearm in Furtherance of a Drug-Trafficking Offense.  The Guidelines calculation was 235-293 months, but the District Court imposed sentence of 132 months on the drug charge and 60 months on the gun charge.  The Government appealed, arguing that this "extraordinary variance" must have "extraordinary circumstances" justifying it.  The panel disagreed, stating that Gall held otherwise.

State v. Lopez, No. SC05-88 (Fla., January 10, 2008):  Confrontation/Cross-Examination:  This is a very nice case applying Crawford and concluding that a prior discovery deposition of a declarant by the defendant's counsel did not qualify as a "prior opportunity for cross-examination" and thus admission of this testimonial statement at trial violated the defendant's confrontation rights (when the declarant did not testify at trial). 


Thoughts on Immigration & DUI Law 

The following is a blog entry by Charles Sifers (with minor edits).  He has given permission to reproduce it here.  I thought it was an interesting take on some of the problems associated with the tough immigration law here in Oklahoma.---JLH


Our office does not handle immigration cases.  While I know that DUI defense has been declared an area of "specialization" by the ABA, I would not be the least surprised if immigration law has reached that same point.  However, in properly representing the DUI client, we must keep up with those "overlaps" within immigration law.  Prior to the recent changes to our state's immigration law, this has been relatively simple to do.
 
Further, this has really not been that big of a deal since most of our clients have not been foreign nationals, but rather good old Oklahoma and/or U.S. citizens; and their citizenship status as such was of little concern.  However, with HB 1804 going into effect on November 1, 2007, immigration law has now bled over into my area of law in indelible ink in a couple of ways.  One of the ways might be understandable.  The other is not.  It is ridiculous.

When a client is arrested for DUI in our State, he is taken to a jail and detained typically 4 to 8 hours (the thinking on this is to hold the client until he sobers up), until he bonds out.  One of the provisions of HB 1804 is triggered here.  Section 5 of that bill creates a new law at 22 O.S. sec. 171.2, that requires the jailers to determine the status of the client as a legal or illegal resident.  Once determined as a "legal," the client may then bond out.  However, if the client is categorized as an "illegal," it is presumed that the client is a flight risk.  This translates into "you aren't gonna be released on bond."  If the status cannot be determined, the statute is not clear on that! Okay, maybe understandable.  But, I can see the potential for abuses on this one.  Thankfully, none of my clients has experienced that potential abuse.

God, I'd love to hear what he might have to say today to those legislators who wrote and passed that Bill, wouldn't you?


Cloverfield by James L. Hankins

The movie attached to the enigmatic trailers depicting the going away party in Manhattan that is interrupted rudely by loud, thunderous sounds has finally made it to theaters under the name Cloverfield.  It opens with television color-bars from a Department of Defense feed, purporting to show a videotape recovered from "the area formerly known as Central Park."  The rest of the movie is the videotape.

This was done first (as far as I know) in The Blair Witch Project to great effect.  As a cinematography device, it is very effective in building tension and underscoring drama.  However, the "shaky" effect and the limited range of view for the moviegoer make it a concept that must be done with an expert hand or else the movie will become unwatchable.  Unfortunately, I believe that Cloverfield has ventured into the unwatchable category.

You will need to take Dramamine before watching this film.  I would venture to guess that 90% of the footage involves the person holding the camera running or moving in terror, which results in swinging the camera back and forth so fast that the viewer cannot see anything but blurred images.  Some of that is effective for identifying with the terror of the character, but its overuse in this film makes it nauseating.  I literally could not watch the entire film.  I was forced to close my eyes for long stretches because of the wobbly/shaky camera work and had a splitting headache hours afterward.  Maybe I am just too old to view this type of thing.

All of which is incredibly tragic because the film works beautifully as a straight-up monster flick had J.J. Abrams decided to just make a film in the usual manner.  The monster is awesome, the story is solid, and the actors (all unknowns, at least to me) are lacking charisma but deliver serviceable performances.  The effects are really good, but we are limited to mere quick glimpses of the most amazing scenes because of the videotape trick.  It is frustrating.  Plus, since we know that the movie will end if no one is using the camera to film, some of the scenes are too contrived because no sane person would continue filming through some of the scenes (they would simply drop the camera and run).

In the end, I left the theater with motion-sickness and a headache, feeling like I just sat through a terrific movie---only one that should have been made by someone else.


Victories

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



SHENA BURGESS, Tulsa County P.D., won an acquittal in a First Degree Murder and Shooting w/Intent to Kill case last week in Tulsa County before the Hon. Jesse Harris.  I am informed that identification was an issue and that the client did not testify.  Also, the jury apparently reached an impasse upon which Judge Harris administered an Allen charge.  From my appellate practice, it seems like once the jury is instructed this way a conviction follows a good amount of the time.  But in this case they jury returned the magical "not guilty."  Terrific work Shena!

JACK GORDON & STEVEN HIGHTOWER began the defense of Wesley Deion Jones in Tulsa a couple of weeks ago.  Jones had won a re-trial on appeal in his capital murder case.  However, the State abruptly changed its tune during voir dire and offered LWOP which Jones accepted.  This was unexpected since Jones had been convicted and sentenced to death once before.  Very nice work by Jack and Steven! 

RICKI J. WALTERSCHEID, OIDS, saved Mr. Schwab from the perils of the criminal justice system because his nefarious deeds were not crimes when he committed them!  Good eye, Ricki!


Hearsay

DEATH ROW INMATE RELEASED IN OHIO:  After spending 20 years on death row, Kenneth Richey, from Scotland, prepared to fly back home last week when he entered a plea to non-capital charges in the arson death of a toddler back in 1986.  This is not a DNA case.  It appears the federal courts granted habeas on an IAC claim and the prosecutor chose to not re-try the case.  Still, it is quite amazing when a death row inmate walks out of prison.

HYBRID EMBRYOS:  This is an interesting (and creepy) story about researchers in the U.K. who have been given permission to create "part human, part animal embryos."  The purpose of the research is to further stem cell study, but the idea is still kind of unnerving.

MUG SHOTS:  The Smoking Gun web site typically features the scandalous side of celebrity by posting embarrassing details of events taken from court or other official documents.  The link here takes you to its Arresting Images page which features a large collection of celebrity mug shots.  Sure, it's tawdry but it's also kind of fun.

ENID POLICE CHIEF SUSPENDS TWIN:  Rick and Randy West are twins and also are long-time members of the Enid Police Department.  Rick West is the Chief of Police and Randy is a Captain.  The Oklahoman reported last Saturday that Rick suspended his twin brother for undisclosed reasons.  This might be of interest to any of you who have cases pending in Garfield county.

EXECUTION TEAM MEMBER A FELON?:  This is an interesting article which details that a member of Missouri's execution team has a criminal record and, when called to assist in the McVeigh execution, had to obtain permission from his probation officer to leave the state(!)  Lovely.



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

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.

WEDNESDAY, JANUARY 23, 2008:  John F. Reif will be sworn in as the newest Justice of the Oklahoma Supreme Court at 3:30 p.m. in the Supreme Court courtroom at the state capitol (second floor).



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