Prentiss Elliott v. State, No. M-2006-253 (Okl.Cr., March 3, 2008) (unpublished):  Assault and Battery Upon an Athletic Official:  Elliott was once a very hot football prospect for Oklahoma State University.  However, he was charged with felony Assault and Battery Upon a Police Officer during halftime at a high school basketball game.  The officer was working as a security guard for the Tulsa Public Schools at the game.  Tulsa attorney Richard O'Carroll convinced Judge Gillert that since the officer was not employed as a Tulsa police officer at the time of the assault, the case should properly be filed as a misdemeanor Assault and Battery on an Athletic Official under 21 O.S. sec. 650.1.  Judge Gillert agreed and the case went to jury trial on the lone misdemeanor count.  The jury found Elliott guilty and assessed a fine of $250.00 with no jail time.  In this appeal, Elliot attacked the statute as vague and also on the grounds that a security guard is not covered under the statutory language.  The Court affirmed, noting that it had upheld the statute over a vagueness challenge in an earlier case; and also that the statutory language covers assaults and batteries on security guards working the games.  It is odd why the Court released this opinion as "not for publication" since it addresses what appears to be an issue of first impression on the construction of this criminal statute.  


Tenth Circuit

United States v. Martinez, No. 07-3087 (10th Cir., March 3, 2008) (Published):  Searches and Seizures; Traffic Stops:  The opening paragraph says it all:  "Traffic stops based on allegedly defective temporary vehicle registration tags have given rise to a whole body of law in our court.  This case presents yet another twist in that ongoing story.  Today, we hold that a trooper who effected a traffic stop because an out-of-state temporary registration permit was not displayed on the rear of the car, as required by Kansas law, did not act unreasonably for purposes of the Fourth Amendment, and we affirm the district court's judgment to the same effect."  Gee, another opinion from the Circuit allowing troopers to use hyper-technical traffic laws to justify pretext traffic stops.  What a shocker.  NOTE:  The trooper issued a warning, told Martinez to "have a good one" and walked back to his patrol car.  He then walked back to Martinez and asked if Martinez would answer a few more questions.  Of course, this lead to a consent search and the drugs in the car.

United States v. Tatum, No. 07-7053 (10th Cir., March 3, 2008) (Published):  Federal Sentencing Guidelines; Access Devices:  Guilty plea to one count of Uttering a Counterfeit Check with the Intent to Deceive an Organization.  At issue is the six-level enhancement under 2B1.1(b)(10) for producing or trafficking of an "access device."  The District Court considered the checks themselves and the account numbers to be access devices.  The panel, following preceding from the Fifth Circuit, disagreed:  "We therefore conclude that both the counterfeit checks and the account numbers printed on those checks fall outside the statutory definition of an access device."  Reversed and remanded for re-sentencing.  The district judge was Ronald A. White out of the Eastern District of Oklahoma.

United States v. Tindall, No. 07-8038 (10th Cir., March 3, 2008) (Published):  Federal Sentencing Guidelines:  Tindall plead guilty to Assault Resulting in Serious Bodily Injury.  The District Court enhanced the sentence after concluding that the injuries could have resulted in the loss of the life of the victim.  The District Court relied upon the PSR as a factual basis for this finding.  The panel found no error and AFFIRMED.

United States v. Trotter, No. 05-3487 (10th Cir., March 3, 2008) (Published):  Federal Sentencing Guidelines:  This is a "Kimbrough remand" from the Supreme Court in a drug case involving the crack/powder cocaine disparity.  The record at sentencing was unclear whether the District Court felt constrained by then-existing circuit precedent to not consider such a variance (as Kimbrough now says is proper) or whether the District Court just chose to not vary the sentence.  Thus:  "We therefore REMAND this case for the district court to clarify why it rejected Defendant's request for a variance based on the crack/powder disparity.  If it rejected this request based on a belief that it did not have discretion to specifically consider whether the disparity resulted in a disproportionately harsh sentence, the court is to conduct resentencing in light of Kimbrough."  NOTE:  The panel clarified the proper terminology which bears repeating here.  A "departure" is when a District Court applies the Guidelines (chapters 4 or 5) that results in an increase or decrease in the Guidelines range.  A "variance" occurs when a court enhances or detracts from the recommended range through application of Section 3553(a) factors.

United States v. Ary, No. 06-3383 (10th Cir., March 4, 2008) (Published):  Waiver; Attorney-Client Privilege:  This is the opinion in the fairly high-profile case of the Max L. Ary, the former President and Chief Executive Officer of the Kansas Cosmosphere and Space Center which was a space museum in Hutchinson, Kansas.  He was accused of essentially selling some space artifacts and keeping the money (some of them were on loan from NASA).  His convictions were affirmed over claims of:  1) violation of the attorney-client privilege and work-product doctrine (the standards for waiver are the same; but the panel held that Ary failed to assert these privileges in a timely manner); 2) introduction of inventory records (to show the Government owned the artifacts sold by Ary).  The panel held the inventory was hearsay but admitted properly under the Rule 803(6) exception; and 3) the amount of loss calculation at sentencing.  NOTE:  The Hon. John L. Kane, United States District Judge, District of Colorado, sat by designation.

United States v. Lopez, No. 07-3159 (10th Cir., March 4, 2008) (Published):  Searches and Seizures; Traffic Stops:  This is about as bad as it gets.  The District Court granted a motion to suppress.  The Government appealed, but failed to file a certification representing that the appeal was not taken for delay and the suppressed evidence is substantial proof of a fact material to the prosecution.  The panel not only held that the Government's failure to file the certification was not jurisdictional and that the Government complied substantially, it addressed the merits of the claim and reversed the suppression order (a typical investigatory pretext-stop based on flimsy facts that resulted in a pretext traffic stop, a warning ticket, and then consent to search).  NOTE:  The panel seemed impressed with the Government's assertion of the logical significance of "the dog that didn't bark" and properly gave Sir Arthur Conan Doyle credit in footnote 2.

United States v. Smart, No. 06-6120 (10th Cir., March 4, 2008) (Published):  Federal Sentencing Guidelines; Reasonableness:  Smart was convicted of Inducing a Minor to Engage in Sexually Explicit Conduct for the purpose of producing videotapes.  The Guideline range was 168 to 210 months.  However, the District Court found that the Guidelines overstated the seriousness of the offense and varied downward, imposing a 120 month sentence.  The Government appealed.  Applying the deferential abuse of discretion standard in Gall, the panel affirmed.  NOTE:  This was a 2-1 split decision with Judges Henry and Lucero in the majority and Judge Hartz dissenting (finding procedural error when the District Court took into account two improper considerations in arriving at the sentence).


United States Supreme Court

Boulware v. United States, No. 06-1509 (U.S., March 3, 2008):  Taxes:  This is a complicated tax evasion case in which the Court had to determine whether a complicated tax defense was allowed.  Boulware was charged with tax evasion.  One element of tax evasion is the existence of a tax deficiency.  The Government accused Boulware of diverting funds from his closely held corporation to fund his lavish life-style.  Boulware claimed that he had no tax deficiency because his close corporation had no earnings or profits (because he gave away all the money to his wife and to his girlfriend!) and, in his view, he received distributions of property that he characterized as returns of capital (which is not taxable income).  The Government moved in limine to bar Boulware from presenting his "return-of-capital" theory to the jury as a defense.  The District Court agreed, applying then-existing Ninth Circuit precedent which held that a distributee such as Boulware had to show that either he or the corporation intended distributions to be returns of capital.  The Supreme Court REVERSED.  HELD:  "A distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that, when the distribution occurred, either he or the corporation intended a return of capital."  NOTE:  This was a unanimous decision penned by Justice Souter.


Other Cases of Note

United States v. Regalado, No. 05-5739-cr (2nd Cir., March 4, 2008):  Federal Sentencing Guidelines:  Like the Trotter case from the Tenth Circuit reported above, the Second Circuit remands a sentence in a drug case in light of Kimbrough where it is unclear whether the District Court would have imposed a non-Guidelines sentence had it been aware that "the cocaine Guidelines, like all other Guidelines, are advisory only." 

United States v. Mendoza, No. 06-50447 (9th Cir., March 3, 2008):  Speedy Trial:  In this tax case, an 8-year delay from the time of the Indictment to Mendoza's arrest violated his Speedy Trial rights.   


Odds and Ends

CJA SOFTWARE:  Chris Eulberg told me about a billing program for CJA attorneys.  It is inexpensive (about $50) and works quite well according to Chris and Bill Campbell (who told Chris about it).  It is called FEDAtty and can be purchased at:  www.fedatt.com

STANDING MUTE:  Chris Eulberg also sent me this gem.  I posted a blurb last week about "standing mute" at the formal arraignment.  Chris told me this story:  An old friend of his, Larry Grant, once advised the client to stand mute before Judge Jack Parr who eyeballed the client and said, "So, you want me to enter a plea for Mr. Client?"  Larry replied, "Yes, Your Honor."  His Honor replied, "OK, GUILTY!"

YOU CAN NOT MAKE THIS STUFF UP:  I spoke to Randy Evers a couple of weeks ago about a case he won in OKC municipal court.  It was a DUI case and he convinced Judge Manger to sustain his demurrer because the OSBI lab, although finding the presence of drugs in the blood of the client, failed to quantify the amount of drugs.  The quantification number is required by OKC Municipal Code Section 32-7(c).  I congratulated Randy on a fine win and good lawyering.

He said, "By the way, were you in an accident with a drunk driver last February?"  YES.  The client he had just walked was the shit-faced driver than ran into me at Wal-Mart last year!  I was just pulling into the parking lot and the guy was pulling out and turned way too wide and he just dented my driver-side door a little bit.  When he got out of his car he was clearly stumbling drunk (not on alcohol apparently, but the guy was clearly wasted).  I thought it was odd that the City did not call me as a witness since I was the victim and then to have the charges dismissed on a technicality??  I feel mistreated and used by the system and want some justice!  :))


Victories

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



RICHARD O'CARROLL, Tulsa, did not get the full win for Prentiss Elliott in the case cited above, but still, when your client starts out charged with a felony but ends up with a misdemeanor conviction and only a $250.00 fine, that is pretty darn good lawyerin'.  Kudos, Richard!

SCOTT TROY, Tulsa, won an acquittal last week before the Hon. Dana Kuhn.  The allegations were Assault and Battery w/Intent to Kill.  The State seemed to think that Scott's client, in the words of Richard O'Carroll, "inveigled his girlfriend to a bridge and then threw her off it after a reasonable amount of torture."  That sounds bad.  But the jury apparently thought it was all good and rejected the State's evidence, in large part because of the cross-examination by Scott of the complaining witness.  Congratulations, Scott!



Hearsay

LOTS OF DEATH LAST WEEK:  Juries in Cleveland County and Garfield County imposed death sentences last week; and a jury in Oklahoma County convicted David Bradford Postelle of capital murder last Friday and will begin hearing evidence during the penalty phase on Monday.  I thought I woke up in Texas with all this death penalty activity.

TULSA POLICE OFFICER Buddy Visser was charged in federal court with Possession or Sale of Stolen Guns and Ammunition.  Visser, an 18-year veteran of the force, has resigned pending the outcome of his criminal case.  You might want to review you cases in Tulsa to see if he is endorsed as a witness.




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

THURSDAY & FRIDAY, MAY 15 & 16, 2008:  The Oklahoma Criminal Defense Lawyers Association and the Oklahoma County Criminal Defense Lawyers Association presents THE SEX CRIME ACCUSATION---FIGHTING FOR YOUR CLIENT'S LIFE.  This CLE will be held at The Marriott Hotel, 3233 N.W. Expressway, OKC, OK (1.800.228.9290) and a seminar rate of $109 is available.  The seminar has been approved for 15 hours of CLE (including 1 hour of ethics).  A registration form and program can be found HERE.  This looks like it is shaping up to be a very good treatment on sex offense issues.  Presenters include yours truly.  I will deliver an update on COCA and legislative goings-on along with David Ogle on Thursday.  Other presenters include:  Cynthia Viol, Andrea Miller, David Smith, Jamie Vogt (Forensic Interviewer from Tulsa and for-hire expert that David and Josh have used before), Stanley G. Schneider (Houston, TX), Jamie Farrell (SANE nurse), Dr. Richard Kishur (the OKC sex offender evaluation guru), Robert A. Manchester, Inspector Les Little, Mary Long (OSBI who will discuss DNA issues), Tracy Schumacher, Jack D. Pointer, Julia Summers (Fed. PD here in OKC who will discuss the federal civil commitment law and presumably the case in which she persuaded Judge DeGuisti that her client was not a "sexually dangerous person"), and Jelpi Pichou (New Orleans).  Also, on Friday afternoon there will be panel discussion of the issues in YOUR cases (you can submit your problems to us by April 21).  Some of these luminaries as well as Tony Lacy will try to solve some of the practical problems that arise in real cases.  This one should be good.




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