United States District Court, D. Colorado
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; ...