OCDW 03.07.16

 

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

 

 

Harvey Randall Wilson v. State, No. F-2014-1005 (Okl.Cr., March 1, 2016) (unpublished): Evidence (Statements by Defendant); Interrogations (Fifth Amendment): Wilson was tried by jury in Cleveland County (the Hon. Lori Walkley, presiding) of conspiracy, murder, and burglary. During his statements to police, he used two racially charged statements that were admitted at trial (he claimed that he knew how to “Jew” in business, and also stated that he had “nigger-rigged” something). Inexplicably, defense counsel failed to move to redact these irrelevant and highly prejudicial statements, so the Court affirmed finding no plain error. NOTE: I also included this opinion because the facts are very creepy. Wilson was jilted by a woman after dating for several months and extracted sever retaliation. This is a reminder of how bat-shit crazy people can be.

 

 

United States v. Jerry Lee Burkholder, No. 13-8094 (10^th Cir., March 4, 2016) (Published) (Briscoe, Holmes & Bacharach): Scienter; Jury Instructions: Burkholder gave a drug to another person who died from it. He was charged with the death. At the instruction hearing, Burkholder requested a jury instruction that the death must be a reasonably foreseeable result of the drug distribution. The district court rejected the request, and in this opinion the panel affirmed, holding that “but for” causation is all that is required. NOTE: Judge Briscoe dissented, making this a 2-1 split decision.

United States v. Myron Jim Harry, No. 14-2160 (10^th Cir., February 29, 2016) (Published) (Hartz, Gorsuch & Phillips): Evidence (Rule of Completeness; Text Messages): In this sexual assault case arising out of a drunken party, the conviction is affirmed over claims that it was error to introduce text messages from Harry to a third party, but not the responses (the responses were not on the phone for some reason). Harry also raised an issue regarding denial of his attempts to introduce evidence that the complaining witness had flirted with him earlier in the night, but he made an inadequate offer of proof.

United States v. Kevin Leroy Smith, No. 15-500 (10^th Cir., February 29, 2016) (Published) (Hartz, Gorsuch & Phillips) (N.D. Okla., Hon. John E. Dowdell): Child Porn; Federal Sentencing Guidelines (PSR): Smith was convicted by jury of eight counts of distributing child porn, and also one count of possession. This occurred when an FBI agent downloaded child porn onto the agent’s computer from Smith’s. On appeal, Smith argued that: 1) the eight counts of distribution were mutliplicitous because a proper unit of prosecution was making him making the images available (not every time it was downloaded); and 2) the district court erred under Rule 32 by adopting the PSR at sentencing of the Government’s account of a pending child-rape charge. Affirmed because the multiplicity argument was not raised below (no plain error), and the refusal of the district court to address a pro se objection by a defendant represented by counsel was not an abuse of discretion (and was, in any event, harmless).

 

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

In the wake of the death of Justice Scalia, the circuit assignments have been allotted in this ORDER.

Also, during the second week of oral arguments since the death of Justice Antonin Scalia, Justice Clarence Thomas surprised the audience by asking a string of questions during the arguments, breaking 10 years of silence from the bench.

 

 

In re: Kurt Franks, No. 15-15456-G (11^th Cir., January 6, 2016): Habeas Corpus (Second/Successive): Franks was sentenced under ACCA as a felon in possession of a firearm with three prior violent felonies. The Supreme Court invalidated these convictions in Johnson v. United States, 135 S.Ct. 2551 (2015), but since Franks had already filed a 2255 action, he had to file a second one, which requires authorization by the circuit and a finding that Johnson was retroactive. In this opinion, a split panel held that Johnson was not retroactive and denied authorization. NOTE: The dissent noted a circuit split on this issue. In the case of In re: Anthony Johnson, No. 16-10011 (11^th Cir., January 20, 2016), the panel addressed this issue again, noting that the Supreme Court has granted certiorari in Welch v. United States, No. 15-6418 (U.S., January 8, 2016), to decide the question, and thus held the case in abeyance pending action by the Supreme Court.

United States v. Mario Jay Asakevich, No. 15-1013 (6^th Cir., January 11, 2016): Habeas Corpus (SOL and Equitable Tolling): Shortly before the statute of limitations was set to expire, Asakevich filed a motion in the district court to extend the time to file his 2255 petition. The district court denied the motion, and in this opinion the panel affirmed.

United States v. Democrus Pernell Burston, No. 14-3213 (8^th Cir., November 23, 2015): Search and Seizure (Drug Dogs); Good Faith: In this case involving an illegal drug dog sniff around an apartment, in violation of Florida v. Jardines, 133 S.Ct. 1409 (2013), the panel held that the good faith exception, here based upon appellate court precedent, did not apply and suppressed the evidence.

 

 

W. CREEKMORE WALLACE, Sapulpa, faced one of the toughest tasks a lawyer can have—representing another lawyer in a criminal case. Creek represented attorney Scott Loftis before a jury in Kay County. Loftis got on the bad side of local law enforcement and ended up charged with conspiracy and drug counts relating to allegedly bringing contraband into a penal institution. At the end of the trial, the jury hung 10-2 in favor of acquittal, and thus a mistrial was declared. Not a clean victory, but worthy of mention because the appointed prosecutor has not announced whether he will retry the case. Nice to see Creek provide tenacious advocacy!

 

 

OFFICER DOWN: There were two opposing stories last week on the nature of being a police officer. In the first one out of Virginia, 28-year-old Ashley Guindon responded with other officers to a domestic disturbance call and was shot and killed—on her very first day on the job. Meanwhile, in Alabama, a police officer was charged with murder in the shooting death of black man outside of a neighbor’s house.

NEW COURT: The town of Byng, Oklahoma, will soon have its own municipal court.

PRISONER RENEWED: The link goes to an inspirational story of a man who spent 23 years in prison and the way he rebuilt his life when got out.

EXPUNGEMENTS: A bill that would ease expungement restrictions on minor offenses has passed the state House by a vote of 88-0.

NEW SHERIFF: Larry Rhodes has defeated the incumbent Sheriff of Garvin County, Steve Brooks.

NOTABLE BUST: A recent drug bust in Lawton has resulted in the “largest seizure of prescription drugs in history of Lawton Police Department.” Meanwhile down in Poteau, law enforcement busted 33 people.

JUDICIAL INDEPENDENCE: Former Chief Judge of the Tenth Circuit, and current President of Oklahoma City University, Robert Henry, has penned an editorial in favor keeping a retention ballot for appellate judges, rather than having them face election.

OSND?: A woman was arrested recently in Stephens County by the Oklahoma State Narcotics Detection team. I had never heard of this “sub agency” dedicated to detection of narcotics.

TOP COP: Skiatook Police Officer Tracy Moore was awarded the Top Cop Award, given to a state law enforcement officer to goes above and beyond in the areas of Occupant Protection, Impaired Driving and Traffic Safety.

BIZARRE CLAIM: A woman in Claremore has filed a federal lawsuit against former DA Janice Steidley and her husband, accusing them assuring her adult son favorable treatment in a criminal case if the woman would use her “feminine wiles” to set up Sheriff Scott Walton.

FELON EMPLOYMENT: Gov. Fallin has issued an executive order removing a check box from state employment applications asking if the applicant is a felon.

GUMM SENTENCED: Former state senator from Durant charged with embezzlement in Mississippi has been sentenced to probation.    

JUDGE RESIGNS: Special Judge Matthew Sheets has resigned from his position in Pittsburg County.

OFFICER SUSPENDED: An Oklahoma City Police Officer, Detective Keith Medley, who was criticized by a federal judge for making reckless or false statements on an affidavit in support of a search warrant has been suspended.

WACKY CRIME

Recently de-classified documents reveal that Bin Laden had a fear that an Iranian dentist planted a tracking device inside his wife’s tooth; a shoplifting suspect in Tulsa urinated in a trash can at an area Dillard’s; a man in Chickasha got liquored up and had an epic drive along the lawns of a neighborhood; police in Ponca City arrested a young man for assault—named Christian Crazybear; a detention officer in Tulsa left his job—but still got paid $40,000.00, which he unfortunately has to pay back now; a man wearing a dress and wig allegedly grabbed the “crotch area” of a police officer at a Tulsa adult movie theater (do they really still have those?); an escapee from Mississippi has been arrested in Oklahoma after trying to steal a TV from Wal-Mart (where else?); how many cell phones were seized from Oklahoma prisons last year?—nearly 8,000!; a man robbed a bank in Oklahoma City so that he could be returned to prison to be with his significant other—but he forgot that robbing a bank will send you to federal prison; welcome back, Gibbs! Isiah Gibbs, a former student at an Edmond High School, has been charged with breaking into the school and camping out.

 

 

FRIDAY, MARCH 25, 2016: The 11^th Annual Oklahoma Forensics Academy will take place at the Moore-Norman Technology Conference Center, 13301 S. Pennsylvania, Oklahoma City, OK, and will be good for 7 CLE credits (includes 30 minutes of ethics).

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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