No new notable cases.  I went to the court last Friday and there were several unpublished cases on the table, but all affirmed and/or otherwise unremarkable.  The Court has been somewhat busy deciding cases lately; unfortunately, none of them appear to assist the defense bar. 


Tenth Circuit

United States v. Mancera-Perez, No. 06-2059 (10th Cir., October 1, 2007) (Published):  1. Appellate Jurisdiction; 2. Invited Error:  In this illegal re-entry case, any challenge to the reasonableness of the sentence is waived because any error was invited.  Mancer-Perez did not simply fail to object to the reasonableness of his sentence, he affirmatively acquiesced to it in open court.  NOTE:  the district court judgment was filed on January 19, 2006, but it was not entered on the court's docket until February 21, 2006 (for reasons not apparent from the record).  For purposes of Fed. R. App. P. 4(b) filing deadlines for the notice of appeal, the date the order is entered on the docket controls.

United States v. Chisum, No. 06-7082 (10th Cir., September 25, 2007) (Published):  Federal Sentencing Guidelines; Leader/Organizer Enhancement:  In this tax evasion case, the convictions are affirmed over meritless claims, but the case is remanded for re-sentencing because the District Court failed to make findings concerning Chisum's role as a leader or organizer; specifically, this enhancement requires another participant who was criminally responsible and the District Court failed to make such a finding.

United States v. Moran, No. 06-2175 (10th Cir., September 25, 2007) (Published):  Searches and Seizures; Traffic Stops:  Conviction by jury of Felon in Possession of a Firearm is AFFIRMED over claims of 1) denial of motion to suppress; 2) admission of prior conviction; and 3) failure to instruct on the accused's theory of defense.  The motion to suppress was based upon a traffic stop when the police effected an investigatory stop based upon a completed misdemeanor.  The panel noted that the Supreme Court has not decided this issue, it is an issue of first impression in the Tenth Circuit, and that the Sixth and Ninth Circuits have split, with the Sixth Circuit holding that police may stop when they have reasonable suspicion of a completed felony, though not of a mere completed misdemeanor; and the Ninth Circuit holding that courts must examine the nature of the misdemeanor.  The panel seemed to follow the analysis of the Ninth Circuit and noted the specific facts in this case.


United States Supreme Court

Although there are no new merits opinions from the Court, there was some hubbub recently as the result of a certiorari grant in a Kentucky case that challenges the lethal injection method of execution in death penalty cases.  The case is Ralph Baze, et al. v. John D. Rees, Commisioner, No. 07-5439.  The amended Order granting certiorari and establishing the briefing schedule can be found HERE.  The Petition for a Writ of Certiorari can be found HERE (in MS Word).

In the wake of the certiorari grant in Baze, Oklahoma Attorney General Drew Edmondson requested the Court of Criminal Appeals to stay setting execution dates pending the outcome of the lethal injection case in the United States Supreme Court.  The request was filed in the case of Terry Lyn Short v. State.

Executions have also been delayed in Texas (by the Supreme Court) and Alabama (by the Governor) on this issue.


Other Cases of Note

Leyva v. Williams, No. 05-2371 (3rd Cir., October 3, 2007):  Habeas Corpus; Procedural Default:  In this federal habeas case challenging the dismissal of a petition filed by a state inmate, the circuit held that Pennsylvania's "affidavit rule", which requires a litigant to submit an affidavit that trial counsel would have been "available and willing" to testify on an IAC claim, was not firmly established or regularly followed and thus could not form the basis of a procedural default.  Remanded to the District Court for consideration on the merits.

United States v. O'Hallaren, No. 07-1559 (7th Cir., October 2, 2007):  Allocution:  After serving time for a federal offense, O'Hallaren was released from BOP custody  to serve 36-months of supervised release.  O'Hallaren turned out to not be probation material, testing positive for cocaine use and otherwise leaving his probation prospects in a shambles.  At the revocation hearing, O'Hallaren admitted all five violations, but the court revoked without allowing O'Hallaren or counsel to address the court.  This violated his right of allocution under Rule 32.1 and prejudice was presumed.  Remanded for re-sentencing (finding plain error).  COMPARE this case to United States v. Pitre, No. 06-3935 (7th Cir., October 3, 2007), which involved strikingly similar facts, but no remand on plain error review.

United States v. Lafferty, No. 06-1901 (3rd Cir., September 28, 2007):  Interrogations/Fifth Amendment:  Lengthy opinion reversing an order denying a motion to suppress statements made during a custodial interrogation.  An ATF agent called Lafferty and her boyfriend to arrange an interview about a recent burglary in the area.  Both Lafferty and the boyfriend agreed to go to the police station to be interviewed.  Agents presented Lafferty with a waiver form and she signed it.  She was questioned for four hours about the burglary (guns were stolen) but she did not respond to most of the questions and when she did respond she denied any involvement.  Eventually, Lafferty told the agent she was "dope sick" (experiencing withdrawals from not having used heroin for three days) and asked to leave.  She was allowed to leave.  She was arrested later on unrelated warrants and questioned again; and again signed the waivers.  However, after some questioning, she said, "If you're going to charge me, charge me.  I'm not going to sit here for four to five hours like last time."  Thereafter, when the boyfriend wanted to meet with her in private she was transported with him to the station where they both made statements.  The panel held that the police did not scrupulously observe her right to remain silent; and also that the trial court erred in allowed the boyfriend's statements as adoptive admissions.

Williams v. State, No. PD-0446-06 (Tex. Crim. App., October 3, 2007):  Scienter; Sufficiency of the Evidence:  A mother left her two children in the care of her boyfriend who lived in a house with o utilities.  A lighted candle caused a fire and the children were killed.  HELD:  these facts do not support a criminally culpable state of mind sufficient to maintain a conviction for the crime of Reckless Injury to a Child.

State v. Reep, No. 79969-5 (Wash., September 27, 2007):  Searches and Seizures; Search Warrants:  Search warrant authorizing a search for evidence for the fictitious crime of "Child Sex" failed to meet the particularity requirement and was therefore unconstitutional.


Acquitted Conduct Still Allowable in Federal Sentencing?

One of the most repugnant aspects of the law of sentencing in federal criminal cases is the ability of the court to consider "acquitted conduct" during sentencing.  In essence, if the jury acquits an accused of a specific aspect of a crime or of a crime in toto, the sentencing court may still find as a matter of fact that the accused committed the acquitted conduct and enhance the sentence.  The Supreme Court allowed this in the pre-Booker case of United States v. Watts, 519 U.S. 148 (1997) (sentencing court may consider the conduct underlying the acquitted charge so long as the conduct has been proved by a preponderance of the evidence).

Does Watts survive Booker?  The Sixth Circuit is grappling with this question.  One panel has decided that Watts is still good law and that acquitted conduct can still be considered by trial courts.  See United States v. Mendez, 2007 WL 2316498 (6th Cir., August 15, 2007).

However, it seems that another panel reached the opposite conclusion in United States v. White, No. 05-6596 (6th Cir., October 5, 2007).  But here is the kicker:  the panel in Mendez published its opinion before the panel in White.  Thus, even though the majority in White reached the opposite conclusion as the panel in Mendez, the panel in White felt constrained to follow Mendez in order to avoid a conflict in the circuit.  Not surprisingly, the opinion in White "strongly recommended" defense counsel to seek en banc rehearing on this issue, stating that "the three members of the panel will strongly recommend that the full court grant the en banc petition to review this important question."

Thus, if you have such an issue, be sure to file a motion and make a good record in the court below because the issue is "live" again and can be re-urged in the Tenth Circuit.


Working Child Sexual Abuse Cases:  It's in the Documents 

Child sex abuse cases are among the most difficult we face.  Josh Welch, Ogle & Welch, OKC, recently had a dismissal just before trial in such a case out of Canadian County.  There are several good lessons in this case concerning the acquisition of records and the preparation of the defense.

The client was charged with one count of Child Sexual Abuse on his youngest daughter who was three-years-old at the time of the alleged abuse.  Client was also going through a bitter divorce with a woman with whom he had five children.

The client took a polygraph and passed.  However, the State refused to dismiss in light of this fact, and also in light of the fact that DHS had already investigated and could not confirm abuse.  The case thus proceeded to preliminary hearing where the complaining witnesses testified that client touched her one time, it did not hurt, and no other details.  The story surrounding the "touching" changed on cross-examination.  In addition, the child repeatedly mentioned how this made Mommy feel. 

The oldest daughter testified that she kept a journal of client's activities and that she had seen client with the child on his lap after a bath with his hand moving up and down under a blanket.  This version of abuse was completely different from the story elicited on cross-examination.

Finally, the State presented the testimony of a forensic interviewer.  She testified that the child had no difficulty communicating, but she also had no knowledge of the prior DHS investigation which failed to confirm abuse, the pending divorce proceedings, or that the five children were home-schooled by the mother and lived in a trailer out in the country.  She testified that these facts would be relevant to the interview but she did not consider the interview flawed.  Josh requested the intake notes from the interview which were produced.  They indicated that the child did in fact have a difficult time communicating.

After the preliminary hearing the client was bound over.  Josh pressed for discovery, including the journal kept by the oldest daughter, the notes of the counselor for the child, the medical reports of examination of the child, and the DHS records.  

The discovery documents and other investigation revealed that the mother (and putative ex-wife of client) was very active in the case and in particular was very adamant that if abuse was not confirmed she would lose custody of the children.  In addition, the counselor's notes indicated that the mother's actions appeared to be geared toward keeping the allegations alive rather than helping the child.  Finally, the journal of the oldest daughter did not contain all its entries and was composed in a manner that showed her anger toward client for leaving the family, not for committing abuse on the child. 

When all the evidence was added up, it became apparent that the prosecution was untenable and the case was correctly dismissed.  The lesson for criminal defense practitioners is that acquisition of all relevant documents is essential in preparing the defense.  Specifically, we must be aggressive in acquiring DHS records (by court order), medical records of the purported abuse, counselor notes, notes from the forensic interviewer, and any journals kept by any witness.  These things paint the big picture in many cases and may provide you with the outline for the defense. 
 

Victories

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



AL HOCH, Jr., OKC, went to Payne County a couple of weeks ago and convinced the jury to acquit his client of First Degree Arson.  The jury was out about an hour and a half.  Good job, Al!

THERESA MCGEHEE, Durant, won an acquittal in a sexual assault case a couple of week ago.  I do not have many details but the jury was apparently out less than one hour.  Way to go, Theresa! 

JOSH T. WELCH, Ogle & Welch, P.C., OKC, worked a Child Sexual Abuse case very hard in Canadian County that resulted in a dismissal of the charge in late September, 2007.  There are some good lessons in this case (see article above) in dealing with these types of cases.  Terrific work, Josh!

THE NORTHERN DISTRICT OF OKLAHOMA has apparently had a string of acquittals in federal court (Tulsa) since August and also a deadlocked jury.  I have few details on these but the lawyers involved are Skip Durbin, Shannon McMurray, Bud Howard, and Stan Monroe.  Very nice work!


Hearsay

ASSISTANT U.S. ATTORNEY John D.R. Atchison committed suicide last Friday in federal prison while awaiting trial on charges that he traveled from Florida to Detroit to have sex with a five-year-old girl.  Atchison was arrested last month on his way to visit the girl.  He was carrying presents for the child, including a doll and earrings as well as sexual materials including petroleum jelly.  Atchison conversed on the internet with a detective posing as the mother of a five-year-old girl resulting in particularly repugnant statements about his planned sexual assault on the child.



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

WEDNESDAY & THURSDAY, NOVEMBER 7 & 8, 2007:  OBA Annual Meeting 2007.  You can register for the various CLE sessions by using the REGISTRATION FORM.  Also, HERE is the schedule of events.  Looks like some good stuff.   



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