USA v. Kirby

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CR-23-026-JFH
)
DANNY GENE KIRBY, 	)
)
Defendant. 	)
FINDINGS AND RECOMMENDATION
Before the court is Defendant’s First Motion to Dismiss Indictment
(Docket Entry #30) and Second Motion to Dismiss Indictment (Docket Entry
#31). 	The Grand Jury sitting in this District indicted Defendant on a
single count of Involuntary Manslaughter in Indian Country in violation
of 	18 	U.S.C. 	§§ 	1112, 	1151, 	and 	1153. 	Specifically, 	the 	Indictment
alleges that Defendant
did unlawfully kill S.B., in the commission of an
unlawful 	act 	not 	amounting 	to 	a 	felony, 	that 	is
operating 	a 	motor 	vehicle 	under 	the 	combined
influence 	of 	alcohol 	and 	any 	other 	intoxicating
substance 	which 	may 	render 	such 	person 	incapable
of 	safely 	driving 	or 	operating 	a 	motor 	vehicle,
contrary 	to 	Title 	47, 	Oklahoma 	Statutes, 	Section
11-902, and in the commission in an unlawful manner
and 	without 	due 	caution 	and 	circumspection 	of 	a
lawful act which might produce death, in violation
of 	Title 	18, 	United 	States 	Code 	Sections 	1112,
1151, and 1153.
See, 	Indictment 	filed 	February 	15, 	2023 	(Docket
Entry #3).
On July 23, 2033, Defendant, an Indian, was driving a motorcycle
on which S.B., also an Indian, was a passenger while leaving Fountainhead
Marina 	bar 	in 	McIntosh 	County, 	Oklahoma. 	While 	attempting 	to 	make 	a
turn, Defendant drove off of the roadway. 	He attempted to re-enter the
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roadway, 	lost 	control 	of 	the 	motorcycle, 	and 	caused 	S.B. 	to 	be 	thrown
from 	the 	motorcycle 	where 	she 	impacted 	with 	the 	pavement. 	S.B. 	died
from her injuries.
When Oklahoma Highway Patrol Trooper Charles Epley arrived at the
scene, he observed Defendant walking around, anxious, and with the odor
of 	alcohol. 	Defendant 	reported 	he 	had 	been 	drinking 	and 	when 	Trooper
Epley inquired what had happened, Defendant stated he “had an accident.”
Trooper Epley noted Defendant’s eyes were bloodshot and again noted he
smelled of alcohol.
Trooper 	Epley 	attempted 	to 	administer 	field 	sobriety 	tests,
including a portable breath test which indicated a blood alcohol level
of 0.04%. 	Trooper Epley then obtained Defendant’s consent to obtain a
blood draw. 	Defendant was transported to the hospital where the blood
draw occurred. 	The blood draw indicated the presence of ethyl alcohol,
Hydroxy-THC, 	THCA, 	THC, 	Amphetamine, 	Tramadol, 	Citalopram, 	Trazodone,
and Oxycodone. 	Defendant was charged thereafter.
First Motion to Dismiss Indictment
In the suppression motion, Defendant contends first contends that
the underlying “unlawful act not amounting to a felony” should not have
been 	based 	upon 	an 	Oklahoma 	statute 	but 	rather 	should 	have 	referenced
the Muscogee (Creek) Nation Code because Defendant and the victim were
Indians 	and 	the 	conduct 	being 	prosecuted 	occurred 	in 	Indian 	Country.
Defendant 	is 	charged 	under 	18 	U.S.C. 	§ 	1112 	with 	Involuntary
Manslaughter. 	By its statutory terms, “manslaughter” is defined as “the
unlawful 	killing 	of 	a 	human 	being 	without 	malice.” 	“Involuntary
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manslaughter” 	requires 	“[i]n 	the 	commission 	of 	an 	unlawful 	act 	not
amounting to a felony, or in the commission in an unlawful manner, or
without 	due 	caution 	and 	circumspection, 	of 	a 	lawful 	act 	which 	might
produce 	death.” 	18 	U.S.C. 	§ 	1112(a). 	The 	Indian 	Major 	Crimes 	Act
incorporates 	the 	offenses 	of 	the 	Major 	Crimes 	Act 	into 	Indian 	Country
in providing
(a) 	Any Indian who commits against the person or
property of another Indian or other person any of
the following offenses, namely . . . manslaughter
. . . within Indian country, shall be subject to
the 	same 	law 	and 	penalties 	as 	all 	other 	persons
committing any of the above offenses, within the
exclusive jurisdiction of the United States.
(b) 	Any offense referred to in subsection (a) of
this section that is not defined and punished by
Federal 	law 	in 	force 	within 	the 	exclusive
jurisdiction of the United States shall be defined
and 	punished 	in 	accordance 	with 	the 	laws 	of 	the
State in which such offense was committed as are
in force at the time of such offense.
18 U.S.C. § 1153.
The 	Assimilative 	Crimes 	Act 	(“ACA”) 	provides, 	in 	pertinent 	part,
that
[w]hoever 	. 	. 	. 	is 	guilty 	of 	any 	act 	or
omission 	which, 	although 	not 	made 	punishable 	by
any enactment of Congress, would be punishable if
committed 	or 	omitted 	in 	the 	jurisdiction 	of 	the
State, Territory, or District in which such place
is situated, by the laws therein in force at the
time of such act or omission, shall be guilty of
a like offense and subject to like punishment.
18 U.S.C. § 13.
Generally, 	the 	ACA 	“applies 	to 	crimes 	on 	Indian 	reservations 	by
way 	of 	18 	U.S.C. 	§ 	1152, 	which 	extends 	federal-enclave 	law 	to 	Indian
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country.” 	United States v. Polk, 61 F.4th 1277, 1279 (10th Cir. 2023)
citing United States v. Langford, 641 F.3d 1195, 1197 (10th Cir. 2011)
(explaining that “in conjunction,” ACA and § 1152 “(1) assimilate state
criminal 	law 	into 	federal 	law” 	for 	acts 	committed 	on 	federal 	enclaves
and “(2) apply these assimilated state crimes to acts committed in Indian
country”).
Defendant 	first 	challenges 	the 	Indictment 	by 	contending 	that 	the
Government should have cited to a crime set out in the Muscogee (Creek)
Nation Code in establishing the “unlawful act not amounting to a felony”
within 	the 	charged 	Involuntary 	Manslaughter 	count. 	Defendant 	reasons
that 	since 	he 	is 	an 	Indian 	and 	S.B., 	the 	alleged 	victim, 	is 	also 	an
Indian, 	and 	the 	incident 	occurred 	on 	an 	Indian 	reservation, 	Defendant
cannot 	be 	prosecuted 	under 	Oklahoma 	law 	for 	the 	underlying 	offense 	of
driving under the influence. 1
1 The “unlawful act not amounting to a felony” which Defendant is alleged to
have committed within the Involuntary Manslaughter charge is a violation of
Okla. Stat. tit. 47 § 11-902 which provides, in pertinent part:
A. It is unlawful and punishable as provided in this
section 	for 	any 	person 	to 	drive, 	operate, 	or 	be 	in
actual physical control of a motor vehicle within this
state, 	whether 	upon 	public 	roads, 	highways, 	streets,
turnpikes, 	other 	public 	places 	or 	upon 	any 	private
road, street, alley or lane which provides access to
one or more single or multi-family dwellings, who:
1. 	Has 	a 	blood 	or 	breath 	alcohol 	concentration, 	as
defined 	in 	Section 	756 	of 	this 	title, 	of 	eight-
hundredths (0.08) or more at the time of a test of such
person's blood or breath administered within two (2)
hours after the arrest of such person;
2. Is under the influence of alcohol;
3. Has any amount of a Schedule I chemical or controlled
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Defendant 	justifies 	this 	contention 	by 	citing 	to 	the 	limitation
found in 18 U.S.C. § 1152 that the ACA
shall 	not 	extend 	to 	offenses 	committed 	by 	one
Indian against the person or property of another
Indian, nor to any Indian committing any offense
in the Indian country who has been punished by the
local law of the tribe, or to any case where, by
treaty 	stipulations, 	the 	exclusive 	jurisdiction
over 	such 	offenses 	is 	or 	may 	be 	secured 	to 	the
Indian tribes respectively.
18 U.S.C.A. § 1152.
The underlying “unlawful act”, however, does not involve an offense
committed by one Indian against another but rather constitutes a traffic
violation, which are often described as “victimless crimes” or “crimes
against the public at large”. 	See United States v. Thunder Hawk, 127
F.3d 705, 709 (8th Cir. 1997)(“the offense of driving under the influence
is more akin to an offense against the public at large, both Indian and
non-Indian, rather than a true ‘victimless’ crime.”). 	Such violations
substance, as defined in Section 2-204 of Title 63 of
the 	Oklahoma 	Statutes, 	or 	one 	of 	its 	metabolites 	or
analogs 	in 	the 	person's 	blood, 	saliva, 	urine 	or 	any
other 	bodily 	fluid 	at 	the 	time 	of 	a 	test 	of 	such
person's blood, saliva, urine or any other bodily fluid
administered within two (2) hours after the arrest of
such person;
4. Is under the influence of any intoxicating substance
other 	than 	alcohol 	which 	may 	render 	such 	person
incapable 	of 	safely 	driving 	or 	operating 	a 	motor
vehicle; or
5. Is under the combined influence of alcohol and any
other 	intoxicating 	substance 	which 	may 	render 	such
person incapable of safely driving or operating a motor
vehicle.
Okla. Stat. Ann. tit. 47, § 11-902.
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are undoubtedly prosecutable by Federal authorities. 	Ross v. Neff, 905
F.2d 	1349, 	1353 	(10th 	Cir. 	1990) 	(“There 	is 	no 	question 	but 	that 	18
U.S.C. 	§ 	13 	would 	allow 	federal 	enforcement 	of 	the 	local 	ordinance
against 	public 	intoxication 	involved 	in 	this 	case.)(emphasis 	in
original). 	This 	is 	sufficient 	to 	satisfy 	the 	requirements 	under 	the
Involuntary 	Manslaughter 	statute. 	Nothing 	in 	that 	provision 	requires
that the “unlawful act” be subject to prosecution by the State in which
it occurred. 	18 U.S.C. § 1112. 2 	As a result, this Court concludes that
the 	Government 	is 	not 	required 	to 	amend 	the 	Indictment 	to 	include 	a
violation of the Muscogee (Creek) Nation Code.
Defendant 	also 	asserts 	that 	the 	ACA 	should 	not 	be 	utilized 	to
charge 	him 	with 	the 	assimilative 	act 	of 	driving 	under 	the 	influence
because “the application of the Oklahoma statute concerning driving while
under 	the 	influence 	of 	alcohol 	or 	other 	intoxicating 	substances 	. 	. 	.
is 	at 	odds 	with 	the 	requirement 	under 	federal 	law 	that 	the 	government
establish 	that 	a 	party 	acted 	with 	gross 	negligence 	before 	they 	can 	be
found guilty of involuntary manslaughter.” 	Defendant cites to the case
of United States v. Benally, 756 F.2d 773 (10th Cir. 1985) to support
this 	proposition. 	The 	problem 	identified 	by 	the 	Tenth 	Circuit 	in
Benally, however, entailed the jury instruction based in state law for
intoxication which the Court found to be in conflict with the requirement
of 	federal 	law 	for 	gross 	negligence 	in 	considering 	the 	charge 	of
2 By so stating, this Court does not rule as a matter of law that only the
federal government may prosecute traffic violations committed by Indians on an
Indian reservation.
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Involuntary 	Manslaughter. 	It 	does 	not 	stand 	for 	the 	proposition 	that
an 	unlawful 	act 	no 	state 	statute 	against 	driving 	while 	under 	the
influence can be used as an “unlawful act not amounting to a felony.”
The requirement under 18 U.S.C. § 1112(a) is that the killing of a human
being 	occurred 	during 	the 	commission 	of 	an 	unlawful 	act 	not 	amounting
to a felony. 	The employment of the state statute does not remove the
requirement to show gross negligence. 	In the end, this is certainly a
matter 	that 	can 	be 	solved 	with 	well-crafted 	jury 	instructions 	without
amendment or dismissal of the Indictment. 	This Court is confident that
the 	presiding 	trial 	judge 	is 	well-equipped 	to 	accomplish 	this 	task.
Defendant’s 	contention 	that 	the 	ACA 	cannot 	be 	used 	in 	this 	fashion 	is
rejected.
Second Motion to Dismiss Indictment
In 	his 	second 	request 	to 	dismiss 	the 	Indictment 	against 	him,
Defendant 	contends 	that 	the 	application 	of 	Okla. 	Stat. 	tit. 	47 	§ 	11-
902(A)(3) 	violates 	his 	constitutional 	rights 	under 	the 	Fifth 	and
Fourteenth Amendments. 	Specifically, this subsection provides that it
is unlawful to operate a vehicle on the public roadways if a person
3. 	Has 	any 	amount 	of 	a 	Schedule 	I 	chemical 	or
controlled substance, as defined in Section 2-204
of 	Title 	63 	of 	the 	Oklahoma 	Statutes, 	or 	one 	of
its metabolites or analogs in the person’s blood,
saliva, 	urine 	or 	any 	other 	bodily 	fluid 	at 	the
time of such person’s blood, saliva, urine or other
bodily 	fluid 	administered 	within 	two 	(2) 	hours
after the arrest of such person
Okla. Ann. Stat. tit. 47 § 902(A)(3).
Defendant asserts that “there is no rational basis for the Oklahoma
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legislature’s 	classification 	of 	marijuana 	as 	a 	Schedule 	I 	drug.”
Defendant states that he has been issued a medical marijuana card under
Oklahoma 	law 	and 	has 	complied 	with 	the 	Oklahoma 	Medical 	Marijuana 	and
Patient Protection Act (“OMMPPA”). 3
As 	the 	Government 	appropriately 	notes, 	marijuana 	is 	considered 	a
Schedule 	I 	controlled 	substance 	under 	both 	Federal 	and 	Oklahoma 	state
law. 	21 	U.S.C. 	§ 	812; 	Okla. 	Stat. 	tit. 	63 	§ 	2-204. 	On 	the 	federal
level, the United States Supreme Court has recognized that Congress has
the 	authority 	to 	classify 	marijuana 	as 	a 	Schedule 	I 	substance 	and 	to
delegate authority to the Attorney General to reclassify it as a lesser-
schedule drug in the future. 	Gonzales v. Raich, 545 U.S. 1, 9, 27–28 &
n.37 (2005)(“the [Controlled Substances Act (“CSA”)] is a valid exercise
of 	federal 	power” 	and 	that 	the 	application 	of 	CSA 	provisions
criminalizing manufacture, distribution, or possession of marijuana to
intrastate growers and users of marijuana for medical purposes did not
violate 	the 	commerce 	clause). 	Moreover, 	any 	challenge 	to 	the
classification 	of 	marijuana 	as 	a 	Schedule 	I 	controlled 	substance 	must
overcome 	the 	rational 	basis 	test. 	Under 	the 	rational 	basis 	test, 	“a
classification 	‘must 	be 	upheld 	against 	equal 	protection 	challenge 	if
there is any reasonably conceivable state of facts that could provide a
rational basis for the classification.’” 	Heller v. Doe, 509 U.S. 312,
320 	(1993) 	(quoting 	FCC 	v. 	Beach 	Commc'ns, 	Inc., 	508 	U.S. 	307, 	313
(1993)). 	The 	judiciary 	does 	not 	sit 	as 	a 	“superlegislature,” 	and 	the
3 Okla. Stat. tit. 63 § 427.1 et seq.
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statute is “accorded a strong presumption of validity.” 	Id. 	While these
citations refer to the federal statute, the same rationale can be applied
to the Oklahoma controlled substances classification statute. 	Just as
it 	is 	not 	inconsistent 	for 	opioids 	and 	other 	controlled 	substances 	to
be both medically beneficial but legislatively regulated, marijuana may
occupy that same status. 	Defendant argues that his due process rights
are 	violated 	when 	the 	Oklahoma 	statute 	provides 	that 	any 	level 	of 	THC
in 	his 	blood 	renders 	him 	criminally 	liable 	for 	driving 	under 	the
influence. 	Defendant 	essentially 	seeks 	for 	this 	Court 	to 	establish
Oklahoma 	public 	policy 	- 	an 	avenue 	onto 	which 	this 	Court 	will 	not
venture. 	This 	is 	a 	legislative 	matter 	and 	not 	a 	constitutional 	one.
The 	judicial 	record 	is 	replete 	with 	courts 	which 	have 	upheld 	this
classification of marijuana on the federal level. 	This Court finds the
reasons 	stated 	by 	these 	courts 	provides 	a 	rational 	basis 	for 	the
classification both on the federal and state level with no justification
to disturb these legislative pronouncements. 4
4 Sacramento Nonprofit Collective v. Holder, 2014 WL 128998, at *1 (9th Cir.
Jan. 15, 2014) (rejecting argument that the federal ban on marijuana, while
permitting prescription drugs, has no rational basis); United States v. Fogarty,
692 	F.2d 	542, 	548 	(8th 	Cir. 	1982) 	(“Thus, 	even 	assuming, 	arguendo, 	that
marijuana 	has 	some 	currently 	accepted 	medical 	uses, 	the 	Schedule 	I
classification may nevertheless be rational in view of countervailing factors
such as the current pattern, scope, and significance of marijuana abuse and the
risk it poses to public health.”); United States v. White Plume, 447 F.3d 1067,
1075–76 (8th Cir. 2006) (affirming the rationale of Fogarty); United States v.
Kiffer, 477 F.2d 349, 355 (2d Cir. 1973) (ruling that even if marijuana is less
harmful than tobacco and alcohol, the classification is not unconstitutional
because 	Congress 	may 	decide 	to 	prohibit 	some 	harmful 	substances 	but 	is 	not
constitutionally compelled to prohibit all); United States v. Washington, 887
F. Supp. 2d 1077, 1102-03 (D. Mont. 2012)(ruling that “there remains sufficient
debate regarding the public benefits and potential for harmful consequences of
marijuana use to find a rational basis to uphold the continued classification
of marijuana as a schedule I controlled substance”); United States v. Zhuta,
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Defendant 	also 	claims 	the 	immunity 	provision 	of 	the 	OMMPPA
precludes the use of Okla. Stat. tit. 47 § 11-902(A)(3) as a basis for
the 	“unlawful 	act” 	under 	18 	U.S.C. 	§ 	1112(a) 	for 	Involuntary
Manslaughter. 	Under the OMMPPA, a medical marijuana card holder “shall
not be subject to arrest, prosecution or penalty in any manner . . . for
the medical use of marijuana in accordance with this act.” 	Okla. Stat.
tit. 	63 	§ 	427.8(F). 	While 	there 	is 	a 	dearth 	of 	case 	authority
interpreting this statute since its relatively recent passage in 2019,
the plain language of this provision in conjunction with § 11-902(A)(3)
suggests 	a 	contrary 	interpretation 	to 	Defendant’s 	urged 	position. 	§
427.8(F) 	precludes 	legal 	action 	“for 	the 	medical 	use 	of 	marijuana 	in
accordance with this act.” 	§ 11-902(A)(3) does not seek to curtail the
medical 	use 	of 	marijuana 	but 	rather 	the 	driving 	while 	using 	marijuana
as an intoxicant.
“If 	possible, 	statutes 	are 	to 	be 	construed 	so 	as 	to 	render 	them
consistent with one another. . . . Eason Oil Co. v. Corp. Comm'n, 535
P.2d 283, 286 (Okla. 1975). 	It is the duty of this Court to reconcile
the 	different 	provisions 	of 	statutes, 	as 	far 	as 	practicable, 	to 	make
them not only consistent and harmonious, but also to give an intelligent
effect to each. 	Inexco Oil Co. v. Corp. Comm'n, 628 P.2d 362 (Okla.1981);
Trapp v. Wells Fargo Express Co., 22 Okla. 377, 97 P. 1003 (1908). If
2010 WL 5636212, at *3 (W.D.N.Y. Oct. 29, 2010)(“[T]he defendant argues that
marijuana does not have a high potential for abuse; that it has been approved
for medical uses; that it is dissimilar to more dangerous substances; and that
identical conduct relating to alcohol and tobacco is not illegal. . . . These
arguments have been repeatedly rejected.”).
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two 	constructions 	are 	possible, 	this 	Court 	will 	prefer 	the 	one 	that
avoids 	conflict 	between 	the 	two 	provisions. 	Roach 	v. 	Atlas 	Life 	Ins.
Co., 769 P.2d 158 (Okla.1989).” 	Sharp v. Tulsa Cnty. Election Bd., 890
P.2d 	836, 	840, 	as 	supplemented 	on 	reh'g 	(Jan. 	31, 	1995). 	Defendant’s
interpretation would completely nullify the effect of 11-902(A)(3) while
this 	Court’s 	interpretation 	gives 	both 	statute 	effect. 	Consequently,
Defendant’s 	suggestion 	of 	complete 	immunity 	for 	those 	with 	medical
marijuana licenses is rejected.
As 	a 	final 	argument, 	Defendant 	argues 	that 	the 	interplay 	and
inconsistency 	between 	§ 	11-902(A)(3) 	and 	§ 	427.8(F) 	renders 	the
application of the statutes void for vagueness and in violation of his
due 	process 	rights. 	While 	the 	Government 	inexplicably 	skipped 	this
argument 	in 	its 	briefing, 	this 	Court 	is 	not 	persuaded 	by 	Defendant’s
stated position.
“The void-for-vagueness doctrine, . . . , guarantees that ordinary
people 	have 	‘fair 	notice’ 	of 	the 	conduct 	a 	statute 	proscribes.
Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d
110 (1972). 	And the doctrine guards against arbitrary or discriminatory
law enforcement by insisting that a statute provide standards to govern
the 	actions 	of 	police 	officers, 	prosecutors, 	juries, 	and 	judges. 	See
Kolender 	v. 	Lawson, 	461 	U.S. 	352, 	357–358, 	103 	S.Ct. 	1855, 	75 	L.Ed.2d
903 (1983).” 	Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). 	It is
contrary 	to 	reason 	that 	one 	who 	is 	medicinally 	taking 	marijuana 	would
believe 	that 	he 	is 	free 	to 	operate 	a 	motorized 	vehicle 	on 	the 	public
roadway 	with 	impunity. 	Again, 	this 	interpretation 	of 	the 	statutes 	is
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consistent 	with 	the 	use 	of 	any 	other 	prescribed 	medication 	which 	has
intoxicating 	properties 	– 	while 	it 	is 	in 	the 	patient’s 	system, 	he 	may
not operate a vehicle. 	This interaction between the prohibited conduct
set out in § 11-902(A)(3) and the permitted conduct in § 427.8(F) may
be consistently read in this manner.
IT 	IS 	THE 	RECOMMENDATION 	OF 	THIS 	COURT 	that 	Defendant’s 	First
Motion to Dismiss Indictment (Docket Entry #30) and Defendant’s Second
Motion to Dismiss Indictment (Docket Entry #31) be DENIED.
The 	parties 	are 	given 	fourteen 	(14) 	days 	from 	the 	date 	of 	the
service of these Findings and Recommendation to file any objections with
a supporting brief. 	Failure to object to the Findings and Recommendation
within 	fourteen 	(14) 	days 	will 	preclude 	appellate 	review 	of 	the 	order
of the District Court based on such findings.
IT IS SO ORDERED this 19th day of May, 2023.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
6:23-cr-00026-JFH Document 61 Filed in ED/OK on 05/19/23 Page 12 of 12