OCDW 04.06.15

 

(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).

 

 

Donald Wayne Farino v. State, No. M-2014-235 (Okl.Cr., April 3, 2015) (unpublished): Waiver (Jury Trial): Farino was convicted at a bench trial before the Hon. Mark R. Campbell (Bryan County), of obtaining cash by false pretense and petty larceny, and he was sentenced to six months county jail. Reversed because there was no record of Farino ever waiving his right to a jury trial. NOTE: A good practice pointer if you handle appeals, in all bench trials always make sure that the first thing you do is look for a waiver of jury trial. The rules are strict concerning these waivers and they must be knowing and voluntary, and clearly on the record. This is one of the few areas in which the Court is fairly inflexible and will reverse when there is not a solid record showing the waiver.

Dakota John Smith v. State, No. F-2014-78 (Okl.Cr., April 2, 2015) (unpublished): Indictments/Informations (Amendment); Continuance: Smith was convicted by jury in Stephens County (the Hon. Joe H. Enos) of Robbery w/Dangerous Weapon and sentenced to 25 years. The Court affirmed, but I included the opinion because it contains a good discussion of the law concerning when the State may amend the Information. Here, the Information was amended during trial from First Degree Robbery, to Robbery with a Dangerous Weapon (unfortunately, there was no objection, so review was for plain error). Basically, the analysis involves a prejudice inquiry, but what the Court really looks at is whether the accused had notice of the crime to which it was changed. This is typically difficult to show by the accused because the pre-trial discovery and the preliminary hearing will usually provide some idea of the range of charges that the State may pursue. So, these claims are not as strong as they might appear, and the Court usually upholds amendments, even late amendments during trial as in this case. Also, trial counsel failed to follow the procedures to request a continuance (motion supported by affidavit), but the Court indicated that review is for an abuse of discretion anyway.

State v. Douglas Raymond Norwood, No. S-2014-786 (Okl.Cr., March 31, 2015) (unpublished) (per curiam): After Formers (Enhancement); State Appeals: This is a State appeal out of Tulsa County where the Hon. Tom C. Gillert dismissed a felony charge of possession of CDS (marijuana), but convicted Norwood of misdemeanor possession instead. The State appealed on the basis that Norwood had three prior felony convictions for possession with intent to distribute (but not simple possession). Norwood’s position was that the priors were under 63 O.S. 2-401 rather than 63 O.S. 2-402, and thus were not proper to enhance. Since Norwood was convicted of a misdemeanor, the State proceeded on a reserved question of law, which the Court answered in the affirmative by affirming the decision of Judge Gillert (relying on another unpublished case). NOTE: This issue comes up often enough, I do not know why the Court would not published this case. It is simple, to the point, and provides guidance to the bench and bar on how to proceed with these situations.

 

 

United States v. Joshua Ferdman, No. 13-2196 (10^th Cir., February 13, 2015) (Published) (Lucero, Baldock & Homes): Restitution: A restitution award to Sprint in a case involving a scheme to fraudulently purchase, and then re-sell, cell phones, is vacated because the Government failed to prove loss sufficiently under the Mandatory Victims Restitution Act.

United States v. Michael Loren Dunn, No. 13-4140 (10^th Cir., February 10, 2015) (Published) (Kelly, Baldock & Ebel): Child Porn; Multiplicity; Supervised Release: This is another case where a person used LimeWire to access child porn. The panel held: 1) no error in the jury instructions regarding distribution (making the images available in LimeWire can constitute distribution); 2) convictions for possession and receipt were multiplicitous; 3) a special condition of supervised release that Dunn participate in the Computer and Internet Monitoring Program is vacated because of a lack of sufficient findings because the condition impinges on his employment; and 4) the restitution order is vacated in light of Paroline v. United States (only actual loss is compensable).

United States v. Philbert Rentz, No. 12-4169 (10^th Cir., February 3, 2015) (Published) (en banc): Statutory Construction (Lenity); Federal Sentencing Guidelines (Use of Firearm): This en banc case deals with the “unit of prosecution” in a case where Rentz used a gun by firing it one time—but it struck two persons, injuring one and killing the other. Is this using a gun in two separate crimes of violence, or only one? In a long, rambling opinion chock full of grammatical minutiae, the Court held that this is only one “use” of the gun; and thus, if the Government seeks a second charge, it must show a second use. NOTE: I like Judge Gorsuch’s description of the rule of lenity: Our job is always in the first instance to follow Congress’s directions. But if those directions are unclear, the tie goes to the presumptively free citizen and not the prosecutor. NOTE: Only Judge Kelly dissented; and the holding here seems to be in line with the majority of the circuits that have addressed the question.

 

 

“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).

 

Woods v. Donald, No. 14-618 (U.S., March 30, 2015) (per curiam): IAC; Habeas Corpus (AEDPA Deference): Trial counsel was absent briefly during testimony concerning other defendants, and the Sixth Circuit held that this was ineffective per se under United States v. Cronic, 466 U.S. 648 (1984). In this short opinion, the Court reversed, holding that the deference provisions of the AEDPA were not met because no case from the Court has held that Cronic applies in this situation.

Grady v. North Carolina, No. 14-593 (U.S., March 30, 2015) (per curiam): Search and Seizure (GPS Tracking): This case deals with Grady’s efforts to avoid a program in North Carolina called the Satellite-Based Monitoring Program whereby sex offenders must wear GPS tacking monitors all the time for the rest of their lives. The lower courts held that such monitoring was not a “search” but the Court disagreed in light of United States v. Jones, 565 U.S. _ (2012). NOTE: The Court did not decide whether such monitoring was itself was unconstitutional, merely that the lower court was wrong in dismissing Grady’s claim as not based upon a search. The Court remanded for the lower courts to decide the constitutional question in the first instance.

 

 

United States v. Jesse Tyrone Chavful, No. 13-11173 (5^th Cir., March 20, 2015): Plea Bargains; Prosecutorial Misconduct (Breach of Plea Agreement): Drug case remanded for re-sentencing when the Government breached its plea agreement with Chavful that it would not use certain illegal conduct as part of a cooperation agreement.

Mark E. Lee v. Harold W. Clarke, No. 13-7914 (4^th Cir., March 20, 2015): IAC: Denial of habeas relief is reversed based upon IAC when trial counsel failed to request a jury instruction defining heat of passion.

 

 

None noted.

 

 

FBI CHEATING: The link, provided by David Landrum of Ronin Resources Group, goes to a U.S. DOJ report on allegations of cheating by FBI agents on the Domestic Investigations and Operations Guide Exam.

DEPUTIES: The City of Claremore and the Cherokee Nation have signed a cross-deputation agreement.

PAROLE BOARD DIRECTOR: The Pardon and Parole Board voted recently to hire a former chief of the Oklahoma Highway Patrol, Van Guillotte, as the Executive Director.

RECUSAL MOTION: Tulsa attorney Richard O’Carroll has moved to recuse the prosecutor handling the case of a former Tulsa police officer charged with murder, arguing that a witness was coached as to what to say. The motion was denied, but the facts are interesting.

FIGHT THE POWER: A man who stood in front of the police department in a town in Ohio to protest the town’s law against panhandling is being prosecuted; and the judge laughing held that any mention of the Constitution or civil rights would “confuse” the jury.

TENACIOUS ADVOCATE: Vanity Fair profiles attorney Judy Clarke, an anti-death penalty lawyer who has represented the Unabomber, Susan Smith, and currently the Boston Marathon Bomber.

BONDSMAN RULES: A bondswoman in Enid has been arrested under new provisions of the Oklahoma Bail Enforcement Act that mandate bail enforcers must be CLEET certified.

14^th DUI: A Muskogee man was sentenced to prison for his fourteenth DUI conviction.

GRIEVANCE: FOP in Tahlequah have filed a grievance against the police chief over cleaning duties at the police department.

POLICE SHOOTING: A 73-year-old reserve deputy shot and killed a fleeing suspect in Tulsa last week, after mistaking his real gun for a taser.

APPOINTMENT: Comanche County prosecutor Irma Newburn has been appointed to the Board of Corrections.

VETERANS: Oklahoma County has a Veterans Diversion Program, run by prosecutor Catherine Burton.

 

WACKY CRIME

Car theft shenanigans occurred in Enid when a man went to an apartment to buy a car, but the “seller” stole the man’s back pack which contained $8,000.00 cash, two checkbooks, an OBO2 automotive scanner, and an iPad Air; a Tulsa man ran out of gas so he did what we all would do, he called a friend to help out—the friend arrived with other people, got some gas, and then pulled a gun and carjacked his buddy; a Broken Arrow man has been accused of stealing $282,000.00 worth of food stamps; things do not end well for a couple accused crashing—a funeral; a young couple was caught recently in a scheme to steal truck tailgates from trucks parked at Will Rogers World Airport—I wonder if they considered whether there would be surveillance…at the airport; meanwhile in Oklahoma City, two brothers were arrested after a bloody fight over a samurai sword.

 

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