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United States v. Clark

United States District Court, N.D. Oklahoma

October 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JACK JIM CLARK, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE.

         On May 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.”

         I.

         On July 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).

         In the 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 USPS. Id.

         Defendant 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 ...

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