Maxwell v. State, 2006 OK CR 33 (Okl.Cr., August 8, 2006):  Guilty Pleas; Alford/Nolo Pleas:  Maxwell entered an Alford plea in Garfield County to a charge of Maintaining a House of Prostitution w/in 1,000 Feet of a Church.  The next step is unusual.  Maxwell filed a Motion to Withdraw his plea, but requested that the trial court deny the Motion so he could appeal the matter and allege a constitutional challenge before the Court of Criminal Appeals.  The State made no objection to this procedure and the trial court apparently did as Maxwell requested.  The Good News:  a certiorari appeal through an Alford plea is an appropriate way to raise a constitutional challenge to a statute, and thus indirectly to the sentence (a bench trial on stipulated facts is another way).  The Bad News:  the constitutional challenge (that the statute gives special treatment to churches and thus violates the First Amendment's "establishment" clause) is rejected.


Tenth Circuit

United States v. Christensen, No. 05-4115 (10th Cir., August 7, 2006) (Published):  Unsurprising opinion rejecting a collateral attack by a pro se appellant seeking modification of his sentence based on Booker and Shepard.  He had previously entered a guilty plea to Felon in Possession of a Firearm and did not appeal.  Concerning the Booker claim, the panel held that such claims are not retroactive on collateral review (per circuit precedent).  Concerning the Shepard claim, the panel concluded that Shepard involved a question of statutory construction rather than a constitutional question and thus, Christensen could not use a non-constitutional claim as a basis for a habeas petition.

United States v. Gonzales, No. 05-1313 (10th Cir., August 7, 2006) (Published):  A postal employee was convicted of opening mail and taking the contents (which was the predicate to a variety of federal crimes).  She requested a jury instruction that such taking must have been committed with the intent to convert to one's own use.  This instruction was denied and the panel affirmed, holding that 18 U.S.C. 1709 does not have such a requirement.

United States v. Yehling, No. 05-1416 (10th Cir., August 8, 2006) (Published):  Quirky factual background in a meth case.  Yehling went to trial and was convicted.  He filed a motion for a new trial based upon newly discovered evidence.  The District Court let him out on bond and waited four years to deny the motion.  In this appeal, Yehling asserted two claims:  1) insufficiency of the evidence; and 2) deprivation of speedy trial and Due Process by the four year delay by the trial court in ruling on the motion for new trial.  Held:  Affirmed.  The panel held that the delay by the trial court in ruling on the motion for new trial was subject to Due Process and Speedy Trial concerns, but Yehling failed to show he asserted these claims timely in the trial court and could not show any resulting prejudice.

United States v. Cordova-Arevalo, No. 05-2013 (10th Cir., August 8, 2006) (Published):  Dry issue of what is the definition of a "felony" under the Guidelines in an illegal re-entry case.  Colorado classified the offense of third degree assault in this case as a misdemeanor but it is a felony for federal sentencing purposes.  Thus, the simple assault for which Cordova served 10 days in jail had the effect of quadrupling his federal sentence.

United States v. Rodriguez-Delma, No. 05-3297 (10th Cir., August 9, 2006) (Published):  Guilty plea to conspiracy to distribute more than 100 lbs. of marijuana and possession of a firearm.  As part of the plea agreement, the Government agreed to not contest any defense objections to enhancements for being an organizer or leader.  The District Court in fact enhanced on this basis, and the Government provided some evidence to support the enhancement, but repeatedly told the District Court that it did not object per the plea agreement.  The panel found that the Government did not violate the plea agreement.

Howard v. Ulibarri, No. 05-2346 (10th Cir., August 9, 2006) (Published):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  For purposes of the one-year statute of limitations under the AEDPA, the statute is tolled by a motion to modify sentence under New Mexico law.  This decision appears to create a circuit split because the Fourth Circuit held that a similar motion does not toll the statute.

United States v. Hunt, No. 05-6023 (10th Cir., August 9, 2006) (Published):  Forgery:  Stephen Jones always said that in state court, the question is usually whether the accused did it, whereas in federal court the question is usually whether what the accused did is a crime.  This case is an example of that.  Hunt was the manager of the Orienta Co-op and used Co-op funds to trade in commodities, leading eventually to financial ruin and bankruptcy of the Co-op.  The feds convicted him of 65 counts of securities forgery and 41 counts of money laundering.  REVERSED AND REMANDED with instructions to enter judgment of acquittal because, whatever else Hunt did, he did not "forge" anything(!!)  Hunt used Co-op checks to fund the commodities accounts and he was authorized to use the checks by virtue of his position as the Co-op manager.  He signed his own name to the checks, the checks were legitimate and used for the purpose for which they were intended, and Hunt made no effort to hide what he was doing from the bank (the Board of the Co-op claimed that Hunt was unauthorized to use Co-op funds to trade).  The panel held that Hunt's actions did not violate the statute under which he was convicted; basically, the Government charged Hunt under the wrong statute.

United States v. Contreras-Ramos, No. 05-4227 (10th Cir., August 9, 2006) (Published):  Guilty plea case where trial counsel filed an Anders brief, citing the appeal waiver as a basis for the futility of pursuing an appeal.  The rule is that the Government can waive the waiver by neglecting to assert it.  In this case, the Government did not file a motion to enforce the plea waiver; rather, it sent a letter to the circuit saying the appeal was barred by the waiver.  The panel held that the letter was sufficient to invoke the waiver and dismissed the appeal.

United States v. McCullough, No. 05-3270 (10th Cir., August 10, 2006) (Published):  McCullough and a co-defendant were convicted on various drug and weapons charges which are affirmed in this lengthy opinion that addresses multiple claims including sufficiency of the evidence, multiplicitous counts, suppression of evidence from a house, and unreasonable sentence.  Notably, the police responded to a burglar alarm at the house and ended up searching it without a warrant and the search was upheld under the "exigent circumstances" exception to the warrant requirement.  No surprise here.

United States v. Olivares-Rangel, No. 04-2194 (10th Cir., August 11, 2006) (Published):  Lengthy and fractured opinion on the issue of, when a search and seizure is unlawful, can the identity of the person (illegal alien in this case) be suppressed as well?  Held:  Yes.  The dissent notes the circuit split on this issue.


United States Supreme Court

No new decisions from D.C.


Other Cases of Note

Ferrara v. United States, No. 05-1736 (1st Cir., August 10, 2006):  Guilty Pleas; Federal:  Solid winner in federal court where a mobster was allowed to withdraw his guilty plea entered more than ten years ago on the basis of newly discovered exculpatory evidence (the Government's snitch changed his story, told the AUSA a version exculpatory of Ferrara and in conflict with the snitch's prior grand jury testimony, and the AUSA not only failed to inform defense counsel he seemed to have taken affirmative steps to conceal the change of heart by the snitch).  NOTE:  This is a good case to show a judge that reliance upon the "good faith" of the prosecutor to turn over exculpatory evidence is sometimes not enough; the District Court made a finding of fact that the AUSA intentionally concealed such evidence from the defense.  NOTE:  The opinion contains the word "algid" meaning "cold or chilly" in reference to the "algid appellate record" in the case.  Nice.

United States v. Chenowith, No. 05-20636 (5th Cir., August 8, 2006):  Possession of Firearm by a Felon:  Chenowith had been convicted of a felony in Ohio, but he petitioned for, and received, reinstatement of his civil rights under Ohio law.  The circuit held that such reinstatement was sufficient to preclude the Government from using the Ohio conviction as a predicate felony conviction under 18 U.S.C. 922.

United States v. Flatter, No. 04-30337 (9th Cir., August 9, 2006):  Searches and Seizures; Pat Downs:  This a good case that reminds us that the police are prohibited from conducting a pat down search of a person for weapons as a matter of course; they must have reasonable suspicion that the person is armed.  I have a sense that most police contacts with citizens end up with a pat down for "officer safety" as a matter of course.  In this case, postal inspectors set up a sting at a postal facility in Spokane, Washington.  They called one of the postal workers in for questioning, who also requested and was accompanied by a union representative, and one of the postal inspectors conducted a pat down of Flatter on the basis that they were meeting in a small room and the encounter could potentially become adversarial (evidence was found on Flatter's person relevant to the crime he was suspected of having committed but no weapons were found nor did the postal inspector provide any reason that weapons would be found on Flatter).  The panel held this search was unconstitutional and in violation of Terry v. Ohio. 


Victories

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



ROBERT L. WYATT, IV, AND GLOYD MCCOY, OKC, represented the irrepressible Gregory Vincent Hunt at trial and on appeal, resulting in a reversal of 106 counts of federal forgery and money laundering!  Hunt has remained free on bond throughout two trials and two appeals and it appears that the potential state charges may be barred by the statute of limitations.  Hunt should go buy a Powerball ticket.  A+ work Bob and Gloyd! 


HONORABLE MENTION:  The Oklahoma Criminal Defense Weekly.  Charles Sifers called me last week and relayed the following:  An attorney in Oklahoma County was arguing a motion before Judge Black in a DUI case, asserting that the felony charge should be a misdemeanor since the ten years had passed with no "conviction" in the present case.  The attorney was holding a copy of the Weekly and reading from an article on this topic.  I wrote the article based upon observations made by Charles.  Motion granted and young man saved from felony conviction!!  Cool. 


Hearsay

CLEMENCY DENIED:  The Oklahoma Pardon and Parole Board denied clemency last Thursday to Eric Allen Patton.  Patton is scheduled to be executed August 29, 2006.

THE NEED FOR SPEED:  A mortgage broker in Arizona named Francesca Cisneros managed to rack up 70 speeding tickets in the last five months, which appears to be a new record for the Scottsdale Police Department. 

OKIE IN THE BIG APPLE:  Former University of Central Oklahoma student Milena Govich has found her way to New York City where she has landed a role in the TV crime drama "Law and Order."  I do not watch that show, but I might check it out to support a fellow Sooner.
  


UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):

SEPTEMBER 14, 2006:  The Federal Bar Association presents this program at the Petroleum Club in Oklahoma City featuring Morris Dees, the founder of the Southern Poverty Law Center.  Mr. Dees will give a presentation on the topic, "With Justice for All."  FBA members $20, all others $30.  To sign up, contact Rosene Coleman at 405.609.5320 or at rosene_coleman@okwd.uscourts.gov.  

SEPTEMBER 29, 2006:  The Federal Bar Association's First Annual Golf Tournament will take place at SilerHorn Golf Club in Oklahoma City.  The tournament will be a four-person scramble and the cost for FBA members is $50 per person.  For non-FBA members the fee is $60.  Click on the link to see the entry form and other info.



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