State ex rel. Campbell v. $18,235.00, 2008 OK 32 (Okl., April 8, 2008):  Forfeiture:  Police found a "simple possession" amount of marijuana and cash in a vehicle driven by Shawn Gandy.  The State filed a forfeiture action against the cash and the trial court denied it, holding that forfeiture of large sums of cash in connection with misdemeanor possession of marijuana violated the Excessive Fines clause of the Eighth Amendment.  REVERSED.  The Legislature had previously gutted the good case law from the Court construing 63 O.S. 2-503(A)(7) as not allowing forfeiture for simple possession.  The Court had not visited these changes until now and went along with the Legislature.  The questions as stated by the Court in this case are:  1) whether simple possession can support the rebuttable presumption that monies found in proximity to any amount of CDS are forfeitable (it can); 2) whether forfeiture is independent of an in personam criminal charge or conviction (it is); and 3) whether forfeiture is limited by the Excessive Fines Clause of the Eighth Amendment (it is not when the monies are proceeds illegally obtained and thus the person had no right to possess the money in the first place). 

Curtis Dale Gibson v. State, No. F-2006-905 (Okl.Cr., April 10, 2008) (unpublished):  Jury Instructions; Defense Requested Instructions:  This is a Rape I (AFCF) case out of Jackson County in which the jury imposed a 30 year sentence.  Gibson raised several claims on appeal, and the Court affirmed his conviction, but vacated his sentence and remanded for re-sentencing based on an 85% jury instruction error.


Tenth Circuit

United States v. Ochoa-Colchado, No. 07-4023 (10th Cir., April 11, 2008) (Published):  1) Immigration; 2) Possession of Firearm by Felon/Illegal:  Ochoa-Colchado entered a conditional guilty plea to one count of Possession of Firearms While Being an Illegal Alien.  Prior to entering his plea, he moved to dismiss the Indictment on the basis that he was not in the country illegally.  His argument was that deportation/removal proceedings against him had been initiated but were still pending at the time of the Indictment.  AFFIRMED.  The Court concluded:  "Defendant, despite his filing of an application for adjustment of status and receipt of an EAD, was still 'illegally or unlawfully in the United States' for purposes of sec. 922(g)(5)(A).'"


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Smith, No. 06-3112 (3rd Cir., March 7, 2008):  Searches and Seizures; Impound:  Smith and Santiago were in a vehicle.  Santiago was the driver.  Police recognized Smith as having an outstanding warrant and the stopped the vehicle and arrested Smith.  After a scuffle, both Smith and Santiago were arrested.  Police did not know who owned the vehicle and neither Smith nor Santiago claimed to own it.  The police, worried that the vehicle might be vandalized or stolen if left where it was, impounded it and found a firearm in the glove compartment during an inventory search.  Smith later confessed that the firearm was his.  The police did NOT have a standardized policy on impoundments.  HOWEVER, the Circuit treated the impoundment here as a "community caretaking impoundment" and analyzed it straight under the Fourth Amendment, concluding that the officer's actions were reasonable.  NOTE:  This case contains a good discussion of the impoundment issue; and in particular, a discussion of the divergent authority on the subject, one line of cases favoring the more structured approach which require that there be standardized police procedures governing impoundments, versus another line which focuses on the reasonableness of the impoundment for a community caretaking purpose. 

Barbe v. McBride, Warden, No. 06-7550 (9th Cir., April 7, 2008):  Confrontation/Cross-Examination:  Habeas case brought by a state prisoner in federal court, alleging that the state trial court restricted improperly his rights to confront and cross-examine the State's expert in a child sex-abuse case.  The trial court blocked inquiry by the defense whether the child had been abused by someone other than the accused.  HELD:  This was error that was prejudicial under the AEDPA.


Victories

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


BILL J. BAZE, OIDS, invoked on appeal the fertile claim under Anderson that Gibson was not afforded the right to instruct his jury on the applicability of the 85% law at his trial, resulting in vacatur of his 30-year sentence and a remand for re-sentencing.  Solid work, Bill!

CHRIS & JEFF EULBERG, OKC, walked their client out of Judge Black's courtroom at the Oklahoma County courthouse last week in what I believe was a Lewd Acts case, although I do not have many details.  Congrats, Chris and Jeff!


Hearsay

FEMALE FEDERAL DEATH SENTENCE:  Lisa Montgomery became the third woman on federal death row following her conviction for killing a Missouri mother-to-be, cutting the baby from the woman's womb, and trying to pass the baby off as her own. 


                    ------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.

TUESDAY, JUNE 3, 2008:  Update to Oklahoma's Immigration Law.  This is an OBA/CLE webcast seminar.  It has been approved for two hours of CLE (0 ethics).  Cost is $100 and you can register on-line at:  www.legalspan.com/okbar/webcasts.asp.  Questions?  Call 405.416.7006.  Particularly relevant to us is a discussion of HB 1804.



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