United States v. Larkins
| Decision Date | 11 December 2013 |
| Docket Number | Case No. 13-CR-172-CVE |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRIAN LEE LARKINS, a/k/a "BRIAN LARKINS," Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
Now before the Court are Defendant's First Motion in Limine (Dkt. # 39), Defendant's Requested Jury Instructions (Dkt. # 38), and Defendant's Trial Brief (Dkt. # 40). Defendant asks the Court to exclude all reference to two Tulsa County District Court cases, case numbers CF-2012-3375 and CF-2012-5086.1 Dkt. # 39 at 2. Defendant's motion in limine also prays that counts two and three of the second superseding indictment be dismissed. Id. at 2-3. Defendant has also requested several jury instructions associated with these requests. Dkt. # 38.
On December 2, 2013, a grand jury returned a second superceding indictment charging defendant with possession of unregistered silencers in violation of 26 U.S.C. §§ 5861(d), 5871 (count one), receipt and transportation of a firearm while under indictment in violation of 18 U.S.C. §§ 922(n), 924(a)(1)(D) (count two), possession of an explosive while under indictment in violation of 18 U.S.C. §§ 842(i), 844 (count three), possession of unregistered destructive device in violationof 26 U.S.C. §§ 5861(d), 5871 (count four), and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c) (count five). Dkt. # 42. The second superseding indictment also contains a firearm forfeiture allegation and an explosive forfeiture allegation. Id. at 5, 7. This case is set for trial on December 16, 2013.
The underlying cases for the "while under indictment" element of counts two and three are State v. Larkins, No. CF-2012-3375 (Tulsa Cnty. Dist. Ct. filed Aug. 1, 2012), and State v. Larkins, No. CF-2012-5086 (Tulsa Cnty. Dist. Ct. filed Nov. 13, 2012).2 The procedural history of those two cases is as follows: On August 1, 2012, an information was filed in Tulsa County District Court charging defendant with unlawful possession of a controlled drug, knowingly concealing/receiving stolen property, unlawful possession of drug paraphernalia,3 and possession of explosives without a permit. Information, Larkins, No. CF-2012-3375 (Aug. 1, 2012) (Serial # 82442504). Defendant pleaded guilty and sentencing was deferred for five years. Larkins, No. CF-2012-3375 (Sep. 10, 2012) (Serial # 82835379); Larkins, No. CF-2012-3375 (Oct. 22, 2012) (Serial # 83371133). On October 2, 2013, the State of Oklahoma filed an application to accelerate judgment and sentence. Application to Accelerate Judgment and Sentence, Larkin, CF-2012-3375 (October 2, 2013) (Serial # 86945519).
On November 13, 2012, an information was filed in Tulsa County District Court charging defendant with knowingly concealing/receiving stolen property. Information, Larkins, No. CF-2012-5086 (Nov. 13, 2012) (Serial # 83574024). Defendant pleaded guilty and sentencing was deferred for two years, to run concurrently with his previous deferred sentence. Larkins, No. CF-2012-5086 (Feb. 22, 2013) (Serial # 84587968).
In spite of the lack of a motion to dismiss counts two and three, this Court will consider defendant's request to dismiss the two counts. This Court will also consider the requested jury instructions associated with defendant's motion in limine and trial brief. Defendant makes four major arguments: that "under indictment" does not include charges filed by information, that a defendant who has received a deferred sentence is not "under indictment," that 18 U.S.C. § 922(n) and 18 U.S.C. § 842(i) are void for vagueness, and that the rule of lenity should be applied.
Defendant's Requested Jury Instructions (Dkt. # 38) repeatedly assert that, if the prior offenses underlying counts two and three were charged via information rather than indictment, defendant must be found not guilty.4 The statutes that counts two and three allege defendant hasviolated both require that the accused be "under indictment." 18 U.S.C. §§ 841(i), 922(n). "Indictment," as it is used in 18 U.S.C. 922(n), "includes an indictment or information . . . ." Id. § 921(a)(14). Additionally, the Tenth Circuit has held that 18 U.S.C. § 842(i) applies to those who have been charged by information. United States v. Fillman, 162 F.3d 1055, 1058 (10th Cir. 1998). Jury instructions must fairly state the governing law. United States v. Johnston, 146 F.3d 785, 792 (10th Cir. 1998). Defendant's requested instructions are contrary to law, and will not be provided to the jury. In either instance, an information is sufficient to satisfy the "under indictment" element. Counts two and three will not be dismissed on this ground.
Defendant argues that, because he has received deferred sentences in his underlying offenses, he is not "under indictment." Dkt. # 40, at 14. Defendant further argues that "under indictment" refers only to the period between being charged with a crime and either entering a plea of guilty or "having a trial." Id. Defendant asserts, without authority, that the purpose of 18 U.S.C. § 922(n) and 18 U.S.C. § 842(i) is to "prevent retaliation against those who testified before the grand jury and caused their indictment, and/or those who will testify against them at the upcoming jury trial." Dkt. # 40, at 6. Defendant's motion in limine requests that counts two and three be dismissed for this reason. Dkt. # 39, at 3.
To determine whether a defendant is "under indictment," a federal court looks to state law. United States v. Hill, 210 F.3d 881, 883 (8th Cir. 2000); see also United States v. Stober, 604 F.2d 1274, 1278 (10th Cir. 1979) ().5 This Court will therefore look to Oklahoma law.
Two circuit courts have previously analyzed whether a defendant subject to deferred proceedings is still "under indictment." The Fifth Circuit has held that "under indictment" includes those subject to a deferred adjudication in Texas. United States v. Valentine, 401 F.3d 609, 616 (5th Cir. 2005); see also United States v. Lewis, 111 Fed App'x 52, 54-55 (2d Cir. 2004) (). The court in Valentine reasoned that, while a defendant is under deferred adjudication, a charge remains pending against him and he is, therefore, still "under indictment." 401 F.3d at 616. Conversely, the Eighth Circuit has held that "under indictment" does not include those subject to a suspended sentence in Missouri. United States v. Hill, 210 F.3d 881, 884 (8th Cir. 2000). The court in Hill reasoned that, under Missouri law, the primary purpose of an indictment is to provide notice to a defendant of the charge against him and that, upon entering a plea of guilty, the indictment is extinguished. Id. But see id. at 884 (Beam, J., dissenting) ().
In Oklahoma, the filing of an information triggers a trial court's jurisdiction. Parker v. State, 917 P.2d 980, 985 (Okla. Crim. App. 1996). The information also serves to provide a defendant with notice of the charges against him. Id. Under Oklahoma law, a "deferred sentence" is not aconviction.6 Belle v. State, 516 P.2d 551, 552 (Okla. Crim. App. 1973). A "deferred sentence" is only a conditional order; it is not a judgment and sentence. Nguyen v. State, 772 P.2d 401, 403 (Okla. Crim. App. 1989), overruled on other grounds by Gonseth v. State, 871 P.2d 51, 54 (Okla. Crim. App. 1994); see also United States v. Hutchinson, 483 Fed. App'x 681, 683 (10th Cir. 2011).7The district court retains jurisdiction over the matter while the defendant is subject to a deferred sentence. Nguyen, 772 P.2d at 403. A charge against a defendant is not dismissed until the completion of the deferred sentence. Platt v. State, 188 P.3d 196, 198-199 (Okla. Crim. App. 2008); see also United States v. Hutchinson, 483 Fed. App'x 681, 683 (10th Cir. 2011). Oklahoma case law suggests that when a defendant receives a deferred sentence, a charge is still pending and the defendant remains "under indictment." Oklahoma's deferred sentencing statutes also support this conclusion.
Oklahoma has two deferred sentencing provisions, Okla. Stat. tit. 22, § 991c and Okla. Stat. tit. 63, § 2-410. The pertinent provisions of section 991c state:
Okla. Stat. tit. 22, § 991c. The pertinent provisions of section 2-410 state:
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