The Court decided quite a few cases last week.  Unfortunately, all of them were unpublished, summary opinions offering little or no relief to the defendant.  Typically, I read through all of these opinions, but I rarely include these types of opinions here in the newsletter because they are either unremarkable or are losers.  The ones I feature here are either winners that will assist trial and appellate practitioners (i.e., will this case help me in the future?) in their cases or are losers that are noteworthy for some reason (e.g., an example of a procedural trap or novel legal issue).  These are the standards that I use in evaluating the cases (basically, I determine whether the case will help me in trials and appeals for my clients or future clients) and periodically I like to inform the membership that I do not feature every case that is decided by the Court.  Just the ones that help us (but I do read and analyze them all).----Ed.

Eizember v. State, 2007 OK CR 31 (August 10, 2007):  Jurors:  This is a correction order to the opinion in a recent capital case that was affirmed.  The correction order simply added the concurring opinion of Judge Lewis.  The majority opinion stated that the actual voir dire answers of a juror control over statements made previously by the juror in a questionnaire.  Judge Lewis disagreed with this approach, opining that in a future case it may be conceivable that the answers on the questionnaire could "trump" the voir dire and result in juror disqualification (although Eizember did not present such a case).

State of Oklahoma, ex rel., Department of Public Safety v. Shaun Eric Kelley, No. 103,942 (Okl.Civ., Div. III, August 10, 2007) (Released for Publication):  DUI; DPS Administrative Hearings:  Kelley, apparently homeless and living in his car, went to a bar in Edmond, got intoxicated,  and then went to sleep in the back of his car (where he lived).  There was no evidence that he drove the car.  He was arrested for APC and DPS revoked his license for 180 days.  Judge Croy (Oklahoma County) set aside the revocation order and the Court of Appeals affirmed, holding that these facts present one of "those rare instances where the facts show that a defendant was furthering the goal of safer highways by voluntarily 'sleeping it off' in his vehicle."  The Court canvassed the extant Oklahoma jurisprudence on this topic and the key difference in this case was that Kelley was sleeping in the back seat as opposed to behind the wheel, and also that there was no evidence that Kelley drove from the bar (he was arrested in the parking lot of the bar). 


Tenth Circuit

United States v. Vera-Flores, No. 06-1128 (10th Cir., August 7, 2007) (Published):  Appellate Jurisdiction:  Vera-Flores pleaded guilty to one count of Possession of a Firearm by an Illegal Alien and was sentenced to twelve months and one day, along with three years of supervised release.  During the pendency of the appeal, Vera-Flores served the time and was deported back to Mexico.  The panel held that this rendered the appeal moot.  DISMISSED for lack of jurisdiction.  NOTE:  The panel distinguished between a case such as this one, where the defendant is deported to another country (and does not have his liberty impacted by the reporting requirements of supervised release) and the case of a defendant who completes the prison time during appeal and is on supervised release but still obligated to report.

Maddox v. Hoch, No. 07-6088 (10th Cir., August 7, 2007) (Unpublished Order):  Ineffective Assistance of Counsel:  An Oklahoma prisoner, proceeding pro se, sued two Oklahoma court-appointed attorneys for ineffective assistance of counsel in a 42 U.S.C. sec. 1983 action.  HELD:  The attorneys are not "state actors" acting under color of law; therefore, the order dismissing the complaint is AFFIRMED.

United States v. Karam, No. 06-8056 (10th Cir., August 7, 2007) (Published):  Searches and Seizures; Traffic Stops:  In the pantheon of horrible traffic stop cases issued by the Tenth Circuit, this one is particularly bad.  Karam was stopped in Wyoming for following another vehicle too closely.  The cop issued a warning, all the while asking the usual litany of travel-related questions and receiving "vague" answers from Karam.  As Karam walked back to his car with the warning ticket, the cop re-initiated "consensual" questioning about travel plans again.  The cop asked for permission to search the car and Karam REFUSED.  Karam was informed that he was not free to leave at this point and a canine was called which alerted to the drugs in the car.  The reasons relied upon by the District Court for reasonable suspicion were:  1) the presence of professionally packaged cardboard boxes similar to those used to transport marijuana in another case; 2) the small size of Karam's luggage which the cop believed to be insufficient for a one-and-one-half-week trip; 3) Karam's eastbound travel from Los Angeles, a drug source area, to Ohio, a market area; 4) Karam's vague responses to the travel-plan questions; 5) Karam's statement that he had to use the restroom despite passing an exit with a restroom; and 6) Karam's "unusual travel plans" of flying to Los Angeles and renting a vehicle to drive back to Ohio.  The panel DISCOUNTED the presence of the boxes, the size of the luggage, and the "drug source to drug market" nature of the travel as indicia of reasonable suspicion; yet, still upheld the search in this case.  NOTE:  Judge McConnell DISSENTED, noting that the reasonable suspicion question was close but that in his mind, the officer lacked the objective and reasonable suspicion necessary to justify the detention.  Judges Murphy and McWilliams carried the day on this issue, however.  I find it very difficult to imagine the current Tenth Circuit ever reversing one of these cases in the future.

United States v. Crisler, No. 07-2072 (10th Cir., August 8, 2007) (Published):  Supervised Release:  Crisler pleaded guilty in New Mexico to False Personation of an Officer of the United States and was sentenced to three years probation.  A special condition was that he was not to possess or consume alcohol.  A probation officer filed a petition alleging that Crisler had violated this rule.  The District Court held a hearing and found that Crisler had in fact violated his probation, but did not revoke; choosing instead to hold the petition in abeyance for five months and impose new conditions.  Another petition to revoke was filed, but this one after the probation term had ended (but Crisler was sentenced to 90 days).  HELD:  The District Court was without authority to revoke because the probation period had ended and there was no showing that either the delay in revocation beyond the time period was reasonably necessary or that a warrant or summons was issued before the expiration date.

United States v. Cano-Verela, No. 06-8020 (10th Cir., August 10, 2007) (Published):  Plea Bargains:  This is an instructive case where the District Court, during a pre-trial conference, informed Cano-Verela that he would potentially face a vastly longer sentence if he went to trail and was convicted than if he pleaded guilty.  Cano-Verela had intended to request a change of counsel so that he could go to trial.  Two weeks after the conference, he accepted the deal.  HELD:  The District Court violated Rule 11(c)(1)(C) by participating in plea negotiations; guilty plea and sentence vacated.

United States v. Schmidt, No. 06-1412 (10th Cir., August 10, 2007) (Unpublished):  Federal Sentencing Guidelines:  Schmidt pleaded guilty to her part in a Ponzi scheme which, according to the government, had an intended loss of $50 million.  However, the counts to which she pleaded guilty had a loss of only $30,000.00.  At sentencing, the government tried to enhance by alleging intended loss by Schmidt of between $20 and $50 million.  Schmidt objected and the District Court simply referred back to the PSIR as establishing this fact.  HELD:  The District Court must actually resolve the dispute and not simply refer back to the PSIR; reversed and remanded.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Amos, No. 06-5032 (6th Cir., August 9, 2007):  Federal Sentencing Guidelines; Crime of Violence:  From the opinion:  "This case presents a single legal question of first impression in this Circuit---whether a defendant's prior conviction for possession of a sawed-off shotgun can serve as a predicate "violent felony" for purposes of a sentencing enhancement under the Armed Career Criminal Act.  The district court held that it does not and for the following reasons, we AFFIRM its decision."  Sweet!

United States v. Morales-Martinez, No. 06-40467 (5th Cir., August 8, 2007):  Federal Sentencing Guidelines; Drug Trafficking Offense:  A state court conviction for delivery of cocaine was not a prior "drug trafficking offense" under the Guidelines.

United States v. Mooney, No. 06-7565 (4th Cir., August 6, 2007):  Guilty Pleas; Possession of Firearm by Felon:  Interesting federal habeas case from a federal prisoner who took away a gun from his intoxicated ex-wife because she pointed it at his head.  He subsequently walked several blocks to his place of employment to hand the weapon over to police.  Unfortunately for Mooney, he was a convicted felon when he possessed the gun.  He reluctantly pleaded guilty because he was advised by counsel that justification was not a defense.  HELD:  Mooney was denied the effective assistance of counsel in entering his guilty plea and was prejudiced by it; conviction and sentence vacated and remanded with instructions to permit him to withdraw his plea.


SUNSHINE by James L. Hankins

Some movies simply must be viewed on the big screen.  Sunshine is such a movie.  I highly recommend that you top off your summer with this film, directed by Danny Boyle and starring...well, no big name actors, but some faces you will probably recognize.

The cast delivers surprisingly good performances all-around in a passable psychological thriller set in deep space, but the star of the film is...the Sun.  Not the pleasant, warm Sun that gently cascades your cheek with warm rays on a summer day, but the huge, menacing Sun that burns violently away everything with six-digit heat.   

In Sunshine, it seems that fifty years in the future the Sun is dying.  Man's only hope is to deliver a super-massive nuclear device to the Sun itself in an attempt to trigger re-ignition.  The scenes of the burning Sun as the massive spaceship travels closer to it are spectacular.  The ship is so close to the Sun that if any part of it ventures outside the shadow of the huge shield mounted in front of the ship, it is incinerated immediately.  This looming danger sets the tension tone throughout the movie.  The scenes in space are just incredible because the filmmakers were able to capture the scope and scale of the ship in relation to the Sun and make it work in the mind of the viewer.  There is also a scene where the ship passes Mercury on the way to the Sun and it is just amazing on the big screen.  

As the ship approaches the burning Sun, the psychological pressure of such a mission takes its toll on the crew and some bad things happen on the journey.  I will not spoil any of the crises encountered by the crew, other than to say that they encounter both natural and man-made dangers.  

But the thing that makes this movie work is the combination of a good, tight story with the stunning visual effects.  In my opinion, Sunshine is a standout in the summer box-office fare.  Next on my agenda is The Bourne Ultimatum, but do yourself a favor and do not wait to see Sunshine on video or DVD.  It is a true big-screen flick.


Victories

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



THOMAS W. HOSTY, OKC, scored a nice appellate win in the Court of Appeals, winning the driving privileges back for his client, the down-and-out Mr. Kelley.  The case is significant because the appellate court seems to have adopted the "temporary shelter" or "refuge" doctrine in relations to APC cases and, although the decision was in the context of a driver's license appeal, the cases relief upon by the appellate court came from case law in criminal cases and thus the same reasoning should apply in the context of a criminal trial.  Very well done, Thomas!


Hearsay

GOVERNMENT REBUKED IN HOUSTON:  Oklahoma City attorney John Claro was accused in a 2004 indictment of health insurance fraud.  The case was dismissed in 2005 and U.S. District Judge Lynn Hughes last week awarded Claro nearly $400,000 in attorney's fees because the prosecution was so unreasonable and groundless.

LOCK'EM UP:  The Sunday Oklahoma ran an article on August 12, 2007, about Oklahoma's amazing incarceration rate.  Oklahoma's incarceration rate ranks fourth in the nation (behind Louisiana, Texas, and Mississippi), but we are first in the rate at which we incarcerate women.  Ugh.

TROUBLE IN KAY COUNTY JAIL:  There was apparently a near-riot about a week ago in the Kay County Jail.  Almost 30 inmates were transferred to other facilities.

PRATER COMMENTS ON DRUG COURT/GANGS:  Oklahoma County DA David Prater spoke to the Edmond Democrats at a monthly meeting about Drug Court and how he is combating gang violence.  



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

THURSDAY & FRIDAY, AUGUST 23 & 24, 2007:  Criminal Defense in the Death Belt III, presented by the OCDLA.  This one is good for 14 hours of CLE (including 1 ethics) and has some good names on the roster including:  David Smith, Gary James, David Autry, Cindy Viol, Janet Chesley, Dick Burr, David Lane (out of Colorado speaking on the wildly successful "Colorado Method" of capital jury selection), and Danalynn Recer (speaking on the representation of foreign nationals).  Cost is $125 for OCDLA Members, $160 for non-Members, and $100 for public defenders.  The Registration form is linked above.  If you have questions contact Brandon Pointer at 405.239.2595.




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