United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
1, 2019, defendant, a federal prisoner appearing pro
se, filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 79).
Section 2255 provides that “a prisoner in custody under
sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or law of the
United States . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
9, 2015, a grand jury returned an indictment against
defendant charging seven counts of false claims for federal
gasoline excise tax refunds in violation of 18 U.S.C. §
287, and the dates of conduct ranged from July 6 to December
27, 2010. Dkt. # 2. On September 10, 2015, a grand jury
returned a superseding indictment (Dkt. # 5) charging the
same seven counts of false claims for federal gasoline excise
tax refunds (counts one through seven), and an additional six
counts of mail fraud for using the United States Postal
Service (USPS) to mail Form 8849s in order to receive federal
excise tax refunds in violation of 18 U.S.C. § 1341
(counts eight through thirteen). On January 14, 2016, a grand
jury returned a second superseding indictment against
defendant (Dkt. # 9) charging twenty counts of false claims
for federal gasoline excise tax refunds (counts one through
20) and nineteen counts of mail fraud for using the USPS to
mail Form 8849s in order to receive federal excise tax
refunds (counts twenty-one through thirty-nine). On February
7, 2017, a grand jury returned a third superseding indictment
against defendant (Dkt. # 12) charging twenty-one counts of
false claims for federal gasoline excise tax refunds (counts
one through twenty-one), and twenty counts of mail fraud for
using the USPS to mail Form 8849s in order to receive federal
excise tax refunds (counts twenty-two through forty-one).
latest indictment, the grand jury alleged that defendant was
the president and owner of Clark Oil Distributors, Inc.
(CODI). Dkt. # 12, at 3. CODI was required to pay an 18.3
cents per gallon federal excise tax on all gasoline that it
bought from suppliers; however, it received federal excise
tax refunds for all gasoline sold to non-taxable entities by
filing a Form 8849 with the Internal Revenue Service (IRS).
Id. at 3-4. It is alleged that defendant falsified
these forms in order to obtain larger refunds. Id.
at 4. Defendant allegedly falsely and fraudulently
represented quantities of gasoline that CODI purportedly sold
to non-taxable entities and the amounts of federal excise tax
that CODI purportedly paid when buying that gasoline.
Id. It was further alleged that defendant caused the
IRS to send federal excise tax refund checks to CODI, in
payment of CODI's fraudulent Form 8849s, by means of the
made his initial appearance on March 7, 2017. Dkt. # 23.
Defendant was found to be indigent, and the Court appointed
federal public defender William Widell to represent him.
Id. However, Widell filed a motion to withdraw (Dkt.
# 29), which was granted, and the Court appointed Martin Hart
to represent defendant. Dkt. # 30. On the date set for
pretrial/change of plea, defendant petitioned the Court to
plead guilty to counts three and twenty-three of the third
superseding indictment, pursuant to a Federal Rule of
Criminal Procedure 11(c)(1)(A) plea agreement (Dkt. ## 39,
40). He pleaded guilty to count three (false claim for
federal gasoline excise tax refund dated September 3, 2010)
and count twenty-three (mail fraud for causing plaintiff to
use the USPS on September 24, 2010 to mail a refund check
based on a false and fraudulent Form 8849). In his plea
agreement, defendant admitted that he made false claims for
over $10, 200, 000 in refunds from the IRS by falsifying his
FORM 8849s, for which he was required to pay restitution.
Dkt. # 39, at 5. There was also a forfeiture agreement.
Id. at 7-10. At the change of plea hearing, the
Court asked defendant:
THE COURT: Have you received a copy of the indictment, the
first superseding indictment, the second superseding
indictment, and the third superseding indictment?
THE DEFENDANT: Yes, ma'am, I have.
THE COURT: Do you understand that those are the written
charges against you in this case?
THE DEFENDANT: Yes.
THE COURT: Have you fully discussed those charges and the
case in general with Mr. Hart as your counsel?
THE DEFENDANT: Yes.
Dkt. # 84, at 8. Defendant admitted to knowingly, willfully,
and intentionally committing the acts constituting the crimes
alleged in counts three and twenty-three as follows:
I, JACK JIM CLARK, admit that on or about September 3, 2010,
within the Northern District of Oklahoma, I made and
presented and caused to be made and presented to the Internal
Revenue Service, an agency of the United States Department of
Treasury, a claim for federal gasoline excise tax refunds for
the period of July 26, 2010 through August 29, 2010 and in
the approximate amount of $601, 042.09, which I knew to be
materially false, ficti[c]ious and fraudulent.
The claim was false in that I claimed to have sold a large
quantity of unleaded gasoline to non-taxable entities, such
as municipal and county governments, public school districts
and universities, when in fact that was not true and I knew
at the time I filed the claim that it was not true. That
claim would have resulted in an excise tax refund of $601,
042.09, however $592, 523.74 of the claim was false. I was
only entitled to a refund of $8, 519.35 from non-taxable
sales. I falsely requested a refund of the federal fuel
excise tax which I had paid at the refinery or terminal when
I purchased the unleaded gasoline when I knew I had not sold
that amount of unleaded gasoline to non-tax entities and was
not entitled to the refund claimed.
Once I had prepared this false claim or caused the false
claim to be prepared, I instructed my staff to place the
claim in the U.S. Mails. The False claim was IRS Form 8849,
claim for Refund of Excise Taxes, which was mailed with the
U.S. Postal Service from Oklahoma City, Oklahoma to the IRS
Excise Tax Division in Covington, Kentucky. This false claim
caused the IRS to direct the U.S. Department of Treasury to
prepare and mail U.S. Treasury Excise Tax Refund check #
2221-43996328 in the amount of $601, 042.09 made payable to
Clark Oil Distributers, Incorporated (“CODI”)
P.O. Box 970, Sapulpa, Oklahoma 74067-0970 through the U.S.
Postal Service on or about ...