USA v. Kirby

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 23-CR-026-JFH
DANNY GENE KIRBY,
Defendant.
OPINION AND ORDER
Before the Court are two motions to dismiss filed by Defendant Danny Gene Kirby
(“Defendant”). Dkt. No. 30; Dkt. No. 31. The United States of America (“Government”) objects
to the motions. 	Dkt. No. 37; Dkt. No. 41. 	For the reasons stated, the motions to dismiss are
DENIED.
BACKGROUND
Defendant is charged with one count of involuntary manslaughter in Indian country. Dkt.
No. 2. The indictment alleges:
On or about July 23, 2022, within the Eastern District of Oklahoma,
in Indian Country, the defendant, DANNY GENE KIRBY, an
Indian, 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, 1141, and 1153.
Id. Jury trial is set to begin June 26, 2023. Dkt. No. 44.
Defendant filed several motions in March 2023: two motions to suppress, two motions to
dismiss, a motion in limine, and a motion to exclude expert testimony. Dkt. No. 29; Dkt. No. 34;
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Dkt. No. 30; Dkt. No. 31; Dkt. No. 33; Dkt. No. 32. One motion to suppress was later withdrawn.
Dkt. No. 51; Dkt. No. 52. The Court referred this group of motions to United States Magistrate
Judge Jason A. Robertson, who held a hearing on them on April 24, 2023. Dkt. No. 54. Magistrate
Judge Robertson issued Findings and Recommendations (“R&Rs”) regarding these motions. Dkt.
No. 60; Dkt. No. 61; Dkt. No. 62. Three additional motions were filed in the case in May 2023.
The Government filed a motion in limine [Dkt. No. 57] and a motion to exclude expert testimony
[Dkt. No. 59]. Defendant filed an unopposed motion in limine. Dkt. No. 58. The Court retained
this second set of motions.
The Court adopts Magistrate Judge Robertson’s recitation of underlying facts and
incorporates them here for ease of reference:
On July 23, 2022, 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 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.
Both Defendant and S.B. were found to have intoxicants in their systems following the
crash. 	Defendant informed an Oklahoma Highway Patrol trooper at the scene that he had been
drinking. He was later transported to the hospital, where his blood was drawn. Toxicology results
indicated the presence of ethyl alcohol, hydroxy-THC, THCA, THC, amphetamines, tramadol,
citalopram, trazodone, and oxycodone in Defendant’s system. 	Medical personnel conducted
toxicology tests on S.B. as well, both at the hospital directly after the crash and as part of her
postmortem examination. 	Results showed ethyl alcohol, amphetamines, benzodiazepines, and
cannabinoids in S.B.’s system.
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AUTHORITY AND ANALYSIS
In his first motion to dismiss, Defendant argues dismissal is necessary because the
Government should have referenced the Muscogee (Creek) Nation Code, rather than Oklahoma
state law, to establish the alleged unlawful conduct underlying the involuntary manslaughter
charge. Dkt. No. 30 at 4. Magistrate Judge Robertson recommended the Court deny this motion.
Dkt. No. 61 at 6-7. 	In his second motion to dismiss, Defendant argues dismissal is necessary
because enforcement of the Oklahoma statute cited in the indictment would be unconstitutional
based on recent developments in Oklahoma law regarding marijuana. Dkt. No. 31 at 5. Magistrate
Judge Robertson recommended the Court also deny this motion. Dkt. No. 61 at 12. Defendant
objected to the R&R [Dkt. No. 66] and the United States responded [Dkt. No. 74].
When a party objects to an R&R, the Court is statutorily required to “make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1). The Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate judge with instructions.” Id.
The Federal Rules of Civil Procedure provide the additional instructions that objections must be
specific as well as written and that the Court must perform de novo review only where a part of
the disposition “has been properly objected to.” Fed. R. Civ. P. 72(b). Cf. United States v. Garcia,
936 F.3d 1128, 1132 (10th Cir. 2019) (looking to Federal Rules of Civil Procedure where Federal
Rules of Criminal Procedure were silent).
Although Defendant filed a 21-page objection to the R&R, the substantive arguments set
out in the objection are—with the exception of one paragraph found on page 19 (which simply
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argues the Magistrate Judge’s logic is “flawed”)—a direct copy of the arguments found in
Defendant’s original two dismissal motions. Dkt. No. 66. This is not a proper objection.
“The filing of objections to a magistrate's report enables the district judge to focus attention
on those issues—factual and legal—that are at the heart of the parties' dispute, and gives the district
court an opportunity to correct any errors immediately.” United States v. One Parcel of Real Prop.,
73 F.3d 1057, 1059 (10th Cir. 1996) (quotations and citations omitted). 	“Thus, the filing of
objections advances the interests that underlie the Magistrate's Act, including judicial efficiency.”
Id. “[O]nly an objection that is sufficiently specific to focus the district court’s attention on the
factual and legal issues that are truly in dispute will advance the policies behind the Magistrate’s
Act.” Id.
Mere regurgitation of original arguments does not trigger the Court’s obligation to perform
de novo review. “While review of the Magistrate Judge’s R&R is de novo, it is not an opportunity
to re-run every argument made to the Magistrate Judge.” 	God's Storehouse Topeka Church v.
United States, No. 22-4014-DDC-TJJ, 2023 WL 2624318, at *4 (D. Kan. Mar. 24, 2023) (quoting
Sigui v. M + M Commc'ns, Inc., 310 F. Supp. 3d 313, 319 (D.R.I. 2018)). “[T]he district court
should be spared the chore of traversing ground already plowed by the Magistrate.” Id. (quoting
United States v. Morales-Castro, 947 F. Supp. 2d 166, 171 (D.P.R. 2013)). See also Cisneros v.
Gomez, No. CIV-21-825-PRW, 2023 WL 2543435, at *1 (W.D. Okla. Mar. 16, 2023) (explaining
objections failed to “meaningfully address” an R&R where they “merely rehashe[d] identical
arguments 	previously 	raised”); 	Vester 	v. 	Asset 	Acceptance, 	L.L.C., 	No.
CIV.A08CV01957MSKLTM, 2009 WL 2940218, at *8 (D. Colo. Sept. 9, 2009) (“An ‘objection’
that merely reargues the underlying motion is little different than an ‘objection’ that simply refers
the District Court back to the original motion papers; both are insufficiently specific to preserve
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the issue for de novo review.”); Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988) (“Just
as a complaint stating only ‘I complain’ states no claim, an objection stating only ‘I object’
preserves no issue for review.”). 	Defendant’s copy-and-paste brief fails to properly challenge
Magistrate Judge Robertson’s analysis and is not a proper objection triggering de novo review.
“In the absence of a proper objection, the district court may review a magistrate judge's
recommendation under any standard it deems appropriate.” Davis v. GEO Grp. Corr., Inc., No.
CIV-16-00462-PRW, 2023 WL 2536727, at *1 (W.D. Okla. Mar. 16, 2023) (citing Summers v.
State of Utah, 927 F.2d 1165, 1167-68 (10th Cir. 1991)). The Davis court reviewed “to confirm
that there [was] no clear error on the face of the record” in the R&R. Id. The Court has reviewed
the R&R with this standard in mind and concurs with its analysis. Moreover, the Court notes that
it would concur with the analysis on either clear error or de novo review.
The one paragraph of new argument found at the end of Defendant’s objection (which
asserts the Magistrate Judge’s logic is “flawed”) does not change the Court’s result. 	There,
Defendant challenges Magistrate Judge Robertson’s reasoning regarding driving while under the
influence of pharmaceuticals. Dkt. No. 66 at 19 (quoting Dkt. No. 61 at 12). Defendant argues
that use of most pharmaceuticals does not expose an individual to strict liability for driving the
way that use of marijuana does, as most prescribed medications are not classified as Schedule I
drugs.1 Id. On de novo review, the Court agrees with Magistrate Judge Robertson’s statement in
his R&R that, “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.” Dkt. No. 61 at 9.
1 Indeed, Schedule I drugs are defined as drugs for which there is no accepted medical use.
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CONCLUSION
IT 	IS 	THEREFORE 	ORDERED 	that 	Magistrate 	Judge 	Robertson’s 	findings 	and
recommendations [Dkt. No. 61] is ADOPTED in full. 	Defendant’s first motion to dismiss
indictment [Dkt. No. 30] and second motion to dismiss indictment [Dkt. No. 31] are DENIED.
Dated this 12th day of June 2023.
JOHN F. HEIL, III
UNITED STATES DISTRICT JUDGE
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