984 F.3d 948
10th Cir.2020Background
- Defendant Riordan Maynard was CEO of Touchbase USA (TBUSA) and its successor Touchbase Global Services (TBGSI); both amassed large unpaid federal payroll-tax liabilities (TBUSA ≈ $2.6M; TBGSI ≈ $2.4M).
- Maynard shut TBUSA and opened TBGSI, lied to IRS agents, transferred corporate funds to evade levies, and otherwise impeded IRS collection efforts from 2012–2017.
- In 2017 TBGSI withheld employee 401(k) contributions and health-insurance premiums but failed to remit them; insurers retroactively cancelled coverage, producing denied claims (UnitedHealthcare ≈ $40,204; Anthem ≈ $95,439) and unpaid withheld premiums (≈ $50,279).
- A grand jury indicted Maynard on 26 counts (tax obstruction, conspiracy, §664 embezzlement of ERISA/401(k) funds, §669 health-care embezzlement). A jury convicted on all counts; district court sentenced him to 78 months and ordered restitution (IRS ≈ $4,970,694.91; 401(k) victims $111,974.04; health-plan victims $185,921.91).
- Maynard appealed four issues: (1) Guidelines loss calculation for tax counts; (2) sufficiency of evidence for §669 health-care convictions; (3) restitution calculation for §664 (401(k)) counts; (4) restitution calculation for §669 (health) counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Guidelines loss for tax Counts 1–2 (U.S.S.G. §2T1.1/§2T1.9) | Government: use total tax liabilities as the object of the offense and Tax Table loss (aggregate TBUSA+TBGSI tax debt). | Maynard: loss should be limited to the amounts his obstructive acts actually deprived the IRS of (≈ $550k–$1.5M); inability to pay makes full liability unrealistic. | Affirmed. Court upheld using combined corporate payroll-tax liabilities (~$4.97M) for loss; declined to discount for collectability or inability to pay. |
| Sufficiency of evidence for §669 Counts 14–26 (health-care embezzlement) | Government: TBGSI’s health plan (and affiliated insurers) qualified as a "health care benefit program" and withheld premiums were plan moneys/plan assets under statutory/regulatory definitions. | Maynard: withheld premiums were debts owed to insurers, not assets of a health-care benefit program; convictions unsupported. | Affirmed. Challenge forfeited by limited Rule 29 motion; even on plain-error review, evidence supported §669 convictions—TBGSI plan and withheld premiums were plan assets. |
| Restitution for §664 Counts 4–13 (401(k) embezzlement) | Government: restitution may include promised employer matching because the promises induced contributions and were part of the conduct underlying the embezzlement. | Maynard: restitution should be limited to amounts actually withheld from paychecks; employer-match was not stolen from employees and was not the subject of the §664 counts. | Affirmed. Court held employer-matching promises were part of the conduct underlying the charged embezzlements, so matching amounts could be included in MVRA restitution. |
| Restitution for §669 Counts 14–26 (health premiums and denied claims) | Government: victims suffered two distinct losses—stolen premiums and out-of-pocket medical expenses from retroactive cancellations—so restitution can cover both to make victims whole. | Maynard: award double-counts and unjustly enrich victims; court should award either withheld premiums or insurer-paid benefit value (net of deductibles), not both. | Majority affirmed. On plain-error review, court found no clear/obvious error and upheld combined restitution (premiums + unpaid claims). Dissent would vacate/reduce award (per-victim greater of premiums or unpaid claims). |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (Guidelines calculation and procedural reasonableness framework)
- United States v. Snow, 663 F.3d 1156 (10th Cir. 2011) (standards for reviewing loss-calculation methodology and clear-error review)
- United States v. Brimberry, 961 F.2d 1286 (7th Cir. 1992) (collectability/inability-to-pay does not reduce tax-loss calculation)
- United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019) (MVRA restitution limited to loss caused by the specific conduct underlying the offense of conviction)
- United States v. Kalu, 791 F.3d 1194 (10th Cir. 2015) (restitution can reflect victims’ loss from defendant’s misrepresentations when misrepresentation is part of the offense)
- United States v. Camick, 796 F.3d 1206 (10th Cir. 2015) (MVRA burden and standards: government must prove causation by a preponderance; review standards for restitution)
- Hughey v. United States, 495 U.S. 411 (1990) (MVRA principle: restitution restores victims to pre-offense position)