United States v. Maynard

          ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS

          CHRISTINE M. ARGUELLO, JUDGE

         This matter is before the Court on four Motions to Dismiss filed by Defendant Riordan Anthony Maynard: (1) Motion to Dismiss Counts 4-13 and 14-26 Due to Multiplicity (Doc. # 47); (2) Motion to Dismiss Counts 1 and 3 Due to Duplicity (Doc. # 49); (3) Motion to Dismiss Count 3 for Failure to Allege a Victim (Doc. # 50); and (4) Motion to Dismiss Subparagraphs a-c of Paragraph 15 of the Indictment Due to Statute of Limitations (Doc. # 51). The Government timely filed four Responses to the Motions to Dismiss. (Doc. ## 53-56.) For the reasons discussed below, the Court denies all four Motions to Dismiss.

         I. BACKGROUND

         Defendant Riordan Anthony Maynard and a business associate, Christina Elbers, were charged in a 26-count indictment (the “Indictment”) on August 22, 2018. (Doc. # 19.) The Government alleges that Defendant and Ms. Elbers “violated a raft of federal criminal statutes during their operation of a communications technology company called Touchbase Global Solutions, Inc (“TBGSI”)” and its predecessor, Touchbase USA (“TBUSA”). (Doc. # 53 at 1.) It asserts that Defendant, together with his co-defendant, “obstructed the IRS in its efforts” to assess taxes against the companies and “victimized [the companies'] own employees by embezzling and stealing employee contributions to 401(k) retirement plans and health insurance premiums.” (Id. at 2.) The Indictment charges Defendant with 26 counts:

a. Count 1: corrupt endeavor to obstruct or impede due administration of the Internal Revenue laws, in violation of 26 U.S.C. § 7212(a);

b. Count 2: conspiracy to defraud the United States, in violation of 18 U.S.C. § 371;

c. Count 3: conspiracy to steal or embezzle employee benefit and health care funds, in violation of 18 U.S.C. § 371;

d. Counts 4-13: theft or embezzlement of employee benefit plans, in violation of 18 U.S.C. §§ 664 and 2; and

e. Counts 14-26: theft or embezzlement in connection with health care, in violation of 18 U.S.C. §§ 669 and 2.

(Doc. # 19 at 4-13.)

         Defendant filed the four Motions to Dismiss presently before the Court on March 11, 2019. (Doc. ## 47, 49-51.) The Government responded to each on March 29, 2019. (Doc. ## 53-56.) A five-day jury trial in this action is set to begin on May 6, 2019. See (Doc. # 31.)

         II. STANDARD OF REVIEW

         The Court presumes Defendant moves to dismiss certain counts in the Indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3). Rule 12(b)(3) requires that certain “defenses, objections, and requests must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3). These defenses and objections include, relevant here:

(B) a defect in the indictment or information, including:

(i) joining two or more offenses in the same count (duplicity);

(ii) charging the same offense in more than one count (multiplicity);

(iii) lack of specificity;

(iv) improper joinder; ...