OCDW 02.27.17

 

(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).

 

 

In re Revision of Portion of Rules of Court of Criminal Appeals, 2017 OK CR 4 (February 24, 2017): Court Rules: This Order makes changes to the Rules governing procedures for appeals in acceleration of deferred sentences and Drug Court terminations.

Hausle v. State, 2017 OK CR 5 (February 24, 2017): Deferred Sentences (Appellate Procedure): Hausle sought to appeal both a termination from Drug Court which resulted in an order accelerating sentence, and also an order denying her motion to withdraw her plea. She instituted two appeals to do this, one by a normal Petition in Error, and also a Certiorari appeal. The State moved to dismiss the appeal from the Drug Court termination as a violation of the Court’s Rules. In this opinion, the Court rejected the State’s motion, holding that the way Hausle did it, by pursuing two separate appeals, is the correct way. This means that if you have a client who is on a deferred that gets accelerated, and the client wishes to appeal both the acceleration order and the underlying plea, in order to appeal, you must file separately a 1) Petition in Error perfecting the final order of acceleration; and 2) a Certiorari appeal attacking the underlying plea.

 

 

United States v. James D. Russian, No. 15-3213 (10^th Cir., February 21, 2017) (Published) (Tymkovich, C.J., McKay & Baldock): Search and Seizure (Search Warrants: Cell Phones, Particularity & Good Faith): Search of cell phones affirmed even though search warrant was invalid because of the good faith reliance on the warrant by the officers. For good measure, the panel also held that even if the warrant was invalid and the good faith exception applied, the error was harmless in any event.

United States v. Bruce Carlton Wright, No. 15-5090 (10^th Cir., February 21, 2017) (Published) (Phillips & Baldock) (N.D. Okla., Hon. Gregory K. Frizzell, C.J.): Jury Instructions (Bank Fraud); Prosecutorial Misconduct (Brady Claims); Restitution; Federal Sentencing Guidelines (Loss Calculations): Conspiracy and bank fraud convictions are affirmed over claims related to jury instructions on bank fraud, response to a jury note, a Brady claim, loss calculation, and the restitution amount. NOTE: Plain error review was had on all claims except the Brady claim. A procedural trap lurks here as well since plain error was not argued in the brief-in-chief, which means it is not even subject to any review. Also, you might have noticed that only two judges are listed. This is because Judge Gorsuch was on the panel and heard argument, but he did not participate in the opinion. Circuit precedent allows the remaining two judges to decide the case.

United States v. C.D., et al., No. 15-3318 (10^th Cir., February 22, 2017) (Published) (Tymkovich, C.J., McKay & Baldock): Sentence Modification: Several defendants pled guilty to conspiracy to manufacture crack cocaine, but cooperated, thus receiving sentences below the 20 year mandatory minimum for substantial assistance. The defendants sought a further reduction under 18 U.S.C. 3582 on the basis that the Sentencing Commission lowered the range by two levels, but for the mandatory minimum. The panel held that the district court had no jurisdiction to consider such motions, and remanded with instructions to dismiss the motions to modify.

United States v. David Savoy Thomas, No. 16-2044 (10^th Cir., February 24, 2017) (Published) (Tymkovich, C.J., Seymour & Kelly): Sufficiency (Robbery); Identification; Severance: Robbery convictions are affirmed over claims relating to: 1) sufficiency of the evidence; 2) in-court identification; and denial of motion to sever counts.

 

 

“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).

 

Duane Edward Buck v. Lorie Davis, Director, No. 15-8049 (U.S., February 22, 2017): Habeas Corpus (COA; Procedural Default; Supreme Court Cases); IAC; Waiver (Claims by the State): This is a bizarre capital murder case out of Texas where Buck’s attorney called a psychologist to testify on the issue of future dangerousness, who posited that Buck’s race as an African-American increased the probability of future crimes. The State of Texas had confessed error in several cases where this witness had given the same testimony when called by the State, but refused to do so in Buck’s case because the witness was called by the defense. Of course, Buck failed to raise this claim in his state post-conviction petition, but tried to do so in a second one after the State confessed error in the other cases. This, of course, was dismissed by the state court as an abuse of the writ. Buck went to federal court, which applied the procedural bar, but then subsequent SCOTUS cases rendered that decision dubious by allowing IAC claims in post-conviction. When those cases came out, Ruck filed a Rule 60(b) motion to reopen his 2254 case, which was denied by the district court, and the Fifth Circuit thereafter denied a COA. In this opinion, the Court reversed, holding that the Fifth Circuit erred in its COA analysis (essentially deciding the case on the merits); also that Buck had demonstrated ineffective assistance of counsel. Also, the State made a waiver argument regarding the new SCOTUS cases that allow IAC claims to be raised on post-conviction counsel, but the Court held that the State waived them. NOTE: Justices Thomas and Alito dissented.

 

 

Otis Sams, Jr., v. State, No. 67A01-1604-CR-814 (Ind. Ct. App., February 21, 2017): Search and Seizure (Impound and Inventory): Traffic stop case where inventory search of fast-food bag was illegal as a general search since it was not regulated by standardized police procedures.

Microsoft Corporation v. United States, No. 14-2985 (2^nd Cir., January 24, 2017) (en banc): Search and Seizure (E-mail): This is a collection of opinions dealing with the Government’s request for en banc review of a panel opinion that upheld a decision quashing the Government’s warrant to Microsoft for e-mail information. It contains a citation to the original panel opinion, and several opinions on the subject that construe the Stored Communications Act.

In Re: Grand Jury Matter #3, No. 15-2475 (3^rd Cir., January 27, 2017): Jurisdiction (Appellate); Privileges (Work Product): As the panel stated it: This appeal presents an unusual question of appellate jurisdiction: May we continue to exercise jurisdiction over an appeal of an evidentiary ruling in a grand jury proceeding even after the grand jury has returned both an indictment and a superseding indictment? Yes, as long as the grand jury investigation continues. Thus concluding that the panel had jurisdiction, the panel reached the legal question of confidentiality of attorney-work-product. It loses protection when used in furtherance of a fraud (the crime-fraud exception). Here, the district court ruled that the work-product lost protection because the client (defendant) only thought about using the product to commit a fraud, not that the client had actually done so: “Because an actual act to further the fraud is required before attorney work product loses its confidentiality and we know of none here, we reverse.”

United States v. Anthony Brown, No. 15-2243 (7^th Cir., December 14, 2016): Federal Sentencing Guidelines (Obstruction of Justice): Enhancement for obstruction is remanded where the obstruction was based upon Brown’s answers to three questions during testimony in a suppression hearing in a different case involving a different defendant.

 

 

JACQUI FORD, OKC, represented Ponca City attorney Scott Loftis who was charged with conspiracy to bring contraband into the jail in Kay County. Prosecutors dismissed the case after a key invoked his Fifth Amendment rights, and in light of the fact that the State had lost evidence in the case. They probably did not want to face Jacqui under those circumstances. Nice work, Jacqui!

 

 

EXPLOSIVES: The McAlester Army Ammunition Plant was searched over the weekend after an employee allegedly stole small amounts of explosives.

GUN SHOTS: Two people were injured in Broken Arrow when a reserve deputy’s gun “went off on its own accord.”

NO FINE: The widow of a man killed by police in Moore went on a tirade for 18 minutes on Facebook, calling police “pigs” which was livestreamed on Facebook at the same time one of the officers was being deposed. This prompted the Government to ask that she be sanctioned and fined thousands of dollars. Judge DeGiusti declined fine the woman.

HIRING FREEZE: Budget constraints have resulted in a hiring freeze at DOC.

NEW APPROACH: The Garvin County Jail is looking to “third party medical providers” as a better way to address inmate medical care and keep costs down.

PROFILE: Interesting profile of attorney A. Diane Hammons.

OSBI LEADERSHIP: OSBI Director Stan Florence had tendered his resignation, but after meeting with the Board, they voted to ask him to withdraw it, which he has done.

NEW POSITION: Chief Deputy Michelle Robinette will be the first Mental Health Coordinator at the Tulsa County Jail.

NEW A.G.: Gov. Fallin has appointed Secretary of State Mike Hunter to fill out the term of Attorney General left vacant when Scott Pruitt was appointed by President Trump to head the EPA.

DANGER: An Ardmore man has been arrested for attempting to obtain a gun to shoot District Attorney Craig Ladd and others.

R.I.P.: Judge Joseph Wapner of the original People’s Court passed away over the weekend at the age of 97.

BAD NEWS: The proverbial knock on the door in the middle of the night is never good news, and OKC P.D. Chaplain Charles Phillips details how difficult it is to be the one who knocks.

CHALLENGES: Interim Attorney General Mike Hunter discusses the challenges facing his office.

 

WACKY CRIME

FROM WHERE?: A man was arrested for stealing…from the snack bar at the courthouse in Oklahoma County.

THREAT: A bomb threat in Altus…against Long John Silvers.

OLD SCHOOL: Two juveniles were arrested in Bartlesville after vandalizing the old-fashioned way…with a slingshot.

FORTUNES: Oklahoma’s fortune teller community wants a 100-year-old state law changed banning their trade. But, don’t they already know the outcome?

GUN WAVING: An Oklahoma City man has been charged with waving a gun at three people while walking down the street bouncing a tennis ball and wearing a child’s paper crown from a fast food restaurant, claiming that he could “put them six feet under.”

DRUNKOREXIA: College kids are trending this ill-advised combination of not eating and drinking alcohol.

HAPPILY EVER AFTER: Three persons were arrested for fighting in Broken Arrow…at a wedding reception.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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