No cases of note to report.


Tenth Circuit

United States v. Bedonie, No. 04-4103 (10th Cir., June 27, 2005) (Published):  District Court could not, on its own motion, re-open its previously entered restitution order.

United States v. Hamilton, No. 04-4091 (10th Cir., June 28, 2005) (Published):  Transportation of child pornography in interstate commerce affirmed over several challenges.  Interesting discussion of internet "newsgroups" and how the police found out Hamilton posted the offending images to one of the newsgroups.

United States v. Taylor, No. 04-6174 (10th Cir., June 28, 2005) (Published):  Guilty plea case on a charge of felon in possession of a firearm with appeal waiver.  The Circuit allowed Taylor to appeal despite the waiver in a very good discussion of this issue, but found no plain error under Booker.  The Circuit did remand for further consideration in light of Shepard.

United States v. Bass, No. 04-6049 (10th Cir., June 29, 2005) (Published): Possession of Child Pornography conviction affirmed but remanded in light of Booker.  Also, interesting concurrence/dissent by Judge Kelly on the issue of sufficiency of the evidence and the distinction between viewing child porn on a computer and actually knowingly possessing it.  It is a computer case arising out of Enid. 

United States v. Contreras-Bustamante, No. 04-1485 (10th Cir., June 29, 2005) (Unpublished):  Booker remand for re-sentencing where Government conceded the error.

United States v. Nguyen, No. 04-6167 (10th Cir., June 29, 2005) (Published):  Unlawful distribution of pseudoephedrine case out of Oklahoma City where Nguyen was caught in an undercover officer drug sting.  Convictions and sentences affirmed over sufficiency of the evidence, entrapment, IAC, and Booker claims.

United States v. Stiger, No. 03-5043 (10th Cir., June 30, 2005) (Published):  Drug case where the panel granted re-hearing after Booker was decided.  Stiger appears to be a very bad dude and was convicted after a 23-day trial with 50 witnesses.  One issue focused on the verdict form used by the District Court which the Circuit found erroneous but harmless.  Another interesting issue was whether Booker mandates that the jury determine, in a conspiracy case such as this one, the amount of drugs attributable to each individual member of the conspiracy.  The panel agreed with five other circuits and held that the jury need only find the amount for the whole conspiracy which sets the statutory maximum and the judge can flesh out the amount attributable to the individual members of the conspiracy.  Finally, the panel remanded to the District Court for an evidentiary hearing on the issue of whether his prior counsel had a conflict when the District Court appointed the prior lawyer to represent a co-defendant who plead guilty.  


United States Supreme Court

Bell v. Thompson, No. 04-514 (U.S., June 27, 2005):  Procedurally complex capital habeas case where the Court chides the Sixth Circuit for sua sponte revisiting its decision and holds that even if the federal rules allow a circuit to stay its mandate after a cert. denial, the Sixth Circuit abused its discretion in doing so in this case.  5-4 opinion and very unusual facts as Justice Breyer noted in his dissent. 


Other Cases of Note

United States v. Hodge, No. 02-1817 (3rd Cir., June 27, 2005):  Federal murder conviction on guilty pleas reversed because the government breached its plea agreement to not recommend any particular sentence.

Madrigal v. Bagley, No. 03-4118 (6th Cir., June 27, 2005):  Habeas granted and AEDPA standards met on Confrontation Clause grounds.

United States v. Stigler, No. 03-3266 (7th Cir., June 27, 2005):  Conspiracy case reversed on the basis of a fatal variance between the Indictment and the evidence presented at trial.  The Indictment alleged a single, over-arching conspiracy; the evidence at trial did not support that finding and the defendant was prejudiced. 


Recommended Experts--Process Servers 

I have been making an effort to get back to the Experts page and have it updated.  One category of expert that is sometimes overlooked is Process Server.  A good process server can save you a lot of headache.  Many process servers are licensed to do statewide work, but I think most work in one area or county.  I'd like to have recommendations on multiple servers for multiple counties.  Below is a good one that I have used within the last month: 

Recommended Process Server--Garfield County:  Chuck Mitchell.  580.603.1234 (cell); 580.249.6554 (pager); 580.234.8114 (day phone); 580.234.3690 (fax).  He is located in Enid, but can beat the bushes in a large area of northwest Oklahoma.  He is good and reasonable.  Give him a call.

Recommending attorneys:  James L. Hankins, Oklahoma City, 405.232.1988; and Michael D. Roberts, Enid, 580.234.4300.


Victories

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

JAMES L. HANKINS, Oklahoma City, won a contested Application to Accelerate in Garfield county on Thursday, June 30, 2005.  Client was on two five-year deferreds on drug offenses which carry from 4-life.  Client in serious jeopardy because judge in the case is known for telling defendants that they will "do it all in or all out" and he means it.  Consecutive life sentences were a distinct possibility here.  The probation violations stemmed from a new case alleging 1) Burg. I, 2) Child Stealing, 3) Felon in possession of firearm, and 4) A&B w/Dangerous (a shovel).  State's evidence was just so weak and contradictory and we spent the morning on the State's case and had eight more defense witnesses lined up for the afternoon.   Never made that far, though, as the Defendant's demurrer was SUSTAINED.  The new charges are still pending and those appear definitely headed for jury trial as well.  I plan to file a motion to dismiss before the special judge raising collateral estoppel, double jeopardy, and law of the case and will let you know how that goes.   

RON JONES, JAMES L. HANKINS, BOBBY FAULK, laced them up in Enid on Monday, June 27, 2005, before a solid Garfield County jury.  Client accused of two counts of Lewd Mol. against two separate complaining witnesses.  Motion to Sever.  Judge Ron Franklin thought that maybe allowing the State to present both counts in one trial would be unduly prejudicial, so Motion to Sever--Granted.  No physical evidence, client denied allegations when questioned by the cops, so case boiled down to the credibility of complaining witness and application of reasonable doubt.  Solid cross by Ron created the reasonable doubt in my opinion.  This is the second case of this type I have tried with Ron and both have had positive results which I attribute to the cross of the complainant, primarily exposing the prior inconsistent statements and other inconsistencies in the case.  For example, in this case, the complainant insisted that the molestation occurred during the time that a specific "sex show" was on television between 8:30 and 9:00 p.m.  But, the cable company confirmed that this particular show aired on the date in question at 11:00 p.m. to 12:00 a.m.  I have also noticed that during the sometimes tedious questioning of the complainant on the prior inconsistent statements there seems to be an initial feeling of discomfort among the jury when the complainant (twelve at the time of the alleged incidents; fifteen at time of trial) is quizzed over sexually explicit statements and conduct; but there comes a point when the discomfort gives way to skepticism as the inconsistencies are exposed and doubt begins to creep in.  Client had seven priors (none sex offense related) and did not take the stand.  Good old-fashioned lawyering in front of a fair judge and educated, thoughtful jury.  Client still faces second charge and that appears to be headed for jury trial as well.  But, overall banner week in Garfield County.
 
JIM ROWAN, Oklahoma City, defended Kevin Thomas Macklin, 22, in a capital case in Oklahoma County last week and was able to spare Macklin from the death penalty.  Macklin was convicted the previous Friday of Murder I in the death of Greg Rogers.  Three others were apparently involved, including Keary Littlejohn who received death earlier this year, and another co-D who is awaiting trial.  Another co-D is apparently snitching and testifying and received life with parole.  He testified that Macklin was the shooter.  The newspaper reports indicated that both Jim and prosecutor Sandra Elliott were overcome with emotion during closing arguments.  I have seen Jim give a sample closing argument at a CLE defending a fictitious client that almost moved everyone to tears.  I would imagine that the real deal is much more compelling.  Great win in Oklahoma County, which as we all know, gives out death sentences with some frequency.  Winning one in that county is cause for celebration.      


Hearsay

JUSTICE O'CONNOR TO RETIRE:  United States Supreme Court Justice Sandra Day O'Connor announced on Friday, July 1, 2005, that she plans to retire from the bench prior to the Court's next term or until President Bush names a successor who is confirmed by the Senate.  Justice O'Connor was the first woman appointed to the Court and has served for 24 years.

FBI AGENT ARRESTED:  Well, it's nice to see that fibbies are not always so up tight.  FBI Agent Christopher Wagner, Norman, was charged in Cleveland county on Monday, June 27, 2005, with falsely reporting a crime (misdemeanor).  The affidavit claims he was drunk and reported to a Moore dispatcher that he was a police officer who had been shot twice, which obviously sparked a very intense two-hour search at Lake Thunderbird.

THE REASON WE WILL NEVER GO OUT OF BUSINESS:  News of the Weird reports that Awiey "Chucky" Hernandez, 20, was arrested when he strolled into a police precinct in Brooklyn, NY to check in on a friend of his.  Unfortunately for Chucky, he stood directly beside his own "wanted" poster and soon joined his friend in the holding cell.  His friend, Huquan "Guns" Gavin, 18, also appeared with Chucky on the wanted poster.



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SUBMISSIONS: Submit articles, war stories, letters to the editor, victory stories, comments, critiques and questions via e-mail to jameshankins@ocdw.com, by phone 405.232.1988, by fax to 405.272.9859, or by regular mail to James L. Hankins, 119 N. Robinson Ave, Ste 320, Oklahoma City, OK 73102.