Harris v. State, 2007 OK CR 32 (August 20, 2007):  Death Penalty; State Cases:  Capital post-conviction case AFFIRMED over several claims involving trial counsel and appellate counsel ineffectiveness, attacks on the Oklahoma capital sentencing scheme, and cumulative error.   


Tenth Circuit

United States v. Geiner, No. 06-8055 (10th Cir., August 20, 2007) (Published):  Child Porn:  Geiner was charged with Attempted Interstate Transportation of Child Pornography and Possession of Child Pornography.  He entered blind pleas and objected to an enhancement that accused him of distribution for something of value (although not for pecuniary gain).  The Government's theory was that Geiner used "bearshare" (a peer-to-peer file sharing program) as a priority trader which allowed him to access the files from others at a faster rate.  The faster access rate was the thing of value.  Geiner was sentenced to the bottom of the Guidelines range.  HELD:  The enhancement applied to Geiner.

United States v. Cooper, No. 06-6309 (10th Cir., August 21, 2007) (Published):  Waiver/Guilty Pleas:  The Circuit considered an issue of first impression:  whether a plea waiver of the right to attack the "sentence" encompasses a waiver of the right to attack a restitution award (a majority of the other circuits have concluded that it does not).  However, the panel held that the specific language of the waiver in Cooper's case encompassed the restitution order; and thus the waiver applied.

United States v. Cos, No. 06-2187 (10th Cir., August 21, 2007) (Published):  Searches and Seizures; Apparent/Common Authority:  This is an interesting search and seizure case where police, armed with an arrest warrant for Cos, went to his apartment where they encountered his 19-year-old ex-girlfriend who was visiting with her kids and cooking in the kitchen.  They asked her for consent to search and found a gun under the bed.  Cos was not there.  Cos was later indicted for being a felon in possession of the gun found in his apartment and he moved to suppress.  The District Court granted the motion.  The panel affirmed, in a 2-1 decision, holding that the evidence supported the findings of the District Court that the police did not determine any facts to establish that the girlfriend had either actual or apparent authority to consent to the search of the apartment (the police did not ask the girlfriend any questions about her relationship to the apartment) and also that the "good faith" exception did not apply in this case because the mistake (improper reliance on the consent of the girlfriend) was made by the police, not another party such as a judicial officer.  Judge Gorsuch dissented, arguing that the Government missed the appeal deadline and thus its appeal was barred.

United States v. Wilken, No. 06-4042 (10th Cir., August 21, 2007) (Published):  Waiver:  Wilken pled guilty to Possession with Intent to Distribute Methamphetamine and was sentenced to 235 months.  In this pro se appeal, the panel HELD:  Statements by the District Court during the plea colloquy created ambiguity as to whether the plea waiver was knowing and voluntary and his sentence was not unreasonable.  The District Court told Wilken that "unless a sentence is imposed above the statutory maximum, which in this case is life, or if it's in violation of the factors listed in the statute, you won't have a right of appeal."  The panel held that this statement differed materially from the written plea agreement.

United States v. Garcia-Lara, No. 06-3054 (10th Cir., August 22, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  Garcia-Lara plead guilty to one count of Possession with Intent to Distributre 500 grams or more of Methamphetamine.  Because of his priors, he was sentenced as a career offender; however, the District Court held that the career offender enhancement overstated his criminal history and therefore sentenced him to a below-Guidelines 140 months (47% below the 262-month Guidelines minimum).  The Government appealed the sentence as substantively unreasonable.  HELD:  Vacated and remanded for re-sentencing because the District Court did not justify such a variance with "compelling reasons."  This appears to be an important decision because it discusses Rita, concluding ultimately that "the Supreme Court's reference in Rita to reasonableness review as an abuse-of-discretion standard does nothing to change the appellate reasonableness standard this Circuit has applied since Booker."  NOTE:  Judge Lucero authored a spirited dissent, criticizing the majority for failing to accord proper deference to the District Court.  Judge Lucero described the "Newtonian pull of the Guidelines toward a near-mandatory center[.]"

United States v. Andrus, No. 06-3094 (August 24, 2007) (Published):  Searches and Seizures; Apparent/Common Authority:  This is a rather unusual en banc Order denying en banc reconsideration of the original panel opinion affirming the denial of a suppression order involving the search of a computer.  The Order recites that the questions not presented in this case are the extent of capability and activation of password protection or user profiles on home computers, the capability of EnCase software to detect the presence of password protection or a user profile, or the degree to which law enforcement confronts password protection or user profiles on home computers.  Judges Kelly, Lucero, McConnell, and Holmes voted to grant rehearing.


United States Supreme Court

No new decisions.

Last Monday, the Court denied rehearing in Rita v. United States, which gave the green light to an appellate presumption of reasonableness to sentences within the Guidelines range.  The Petition for Rehearing is interesting and can be found HERE.


Other Cases of Note

United States v. George H. Ryan, No. 06-3528 (7th Cir., August 21, 2007):  This is not a winner, but is the opinion affirming the convictions of former Illinois Governor George Ryan.  The jury trial lasted six months and Ryan received a sentence of 74 months.


Victories

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



WARREN GOTCHER won an acquittal in Pittsburg County for a client charged with First Degree Murder in the death of a former employee.  Jurors deliberated for little more than an hour before finding the client not guilty of both the principal charge and the lesser crime of heat of passion manslaughter.  The defense was self-defense.  Terrific work, Warren!



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