United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
GREN SCHOLER JUDGE.
Order addresses Defendants Michelle Selgas and John
Green's Motion to Dismiss [ECF No. 111] and Joint Motion
to Dismiss Based on Statute of Limitations [ECF No. 116]. For
the following reasons, the Court denies the Motions.
criminal action, the Government alleges that Defendants
Michelle Selgas ("Selgas") and John Green
("Green") (collectively, "Defendants")
conspired to defraud the Government of tax revenue, and that
Selgas attempted to evade tax payment for the 1998 to 2001,
and 2005 tax years. See ECF No. 1
("Indictment") ¶¶ 12-47, 50-51. According
to the Indictment, Selgas and Green continued the conspiracy
and tax evasion through the Summer 2017. See Id.
¶¶ 37, 41. The alleged scheme involved, among other
things: (1) underreporting the income of a partnership; (2)
converting cash proceeds into gold coins; and (3) using
Green's Interest on Lawyers Trust Accounts
("IOLTAs") to pay Selgas's personal expenses.
See Id. ¶¶4-5, 21, 23-27, 32, 39-41.
Defendants filed the pending Motions on December 12, 2019,
and December 17, 2019, respectively, which are now fully
briefed and before the Court.
Federal Rule of Criminal Procedure 12(c)(1), the Court
"may ... set a deadline for the parties to make pretrial
motions." "If a party does not meet the
deadline" the Court prescribed, "the motion is
untimely," but the Court may consider an untimely
"defense, objection, or request if the party shows good
cause." Fed. R. Crim. P. 12(c)(3). In the present case,
the Court required the parties to file all pretrial motions
by July 12, 2019. See ECF No. 49. Nonetheless,
Defendants filed the present Motions five months after the
deadline-on December 11, 2019, and December 17, 2019. See ECF
Nos. 111, 116. Moreover, Defendants did not move for an
extension of this deadline or attempt to justify the belated
filing. Accordingly, the Court denies the Motions because
they are untimely, and Defendants did not provide any excuse
for the delay. See United Stales v. Williams, 774
Fed.Appx. 871, 876 (5th Cir. 2019).
Sufficiency of the
Defendants timely filed their Motion challenging the
sufficiency of the Indictment, see ECF No. 111, the
Court would deny this Motion. An indictment is sufficient
where it "contains the elements of the offense charged
and fairly informs the defendant of the charge against which
he must defend," United States v. Lawrence, 727
F.3d 386, 397 (5th Cir. 2013) (quoting United States v.
Fuller, 974 F.2d 1474, 1480 (5th Cir. 1992)).
"Generally, an indictment [that] follows the language of
the statute under which it is brought is sufficient to give a
defendant notice of the crime of which he is charged."
United States v. Thomas, 348 F.3d 78, 82 (5th Cir.
2003) (quoting United States v. Ramirez, 233 F.3d
318, 323 (5th Cir. 2000)). When the court decides a motion to
dismiss the indictment for failure to state an offense, it
must "take the allegations of the indictment as true and
. .. determine whether an offense has been stated."
United States v. Kay, 359 F.3d 738, 742 (5th Cir.
2004) (quoting United States v. Hogue, 132 F.3d
1087, 1089 (5th Cir. 1998)). In the present case, Defendants
challenge the sufficiency of the Indictment because the
Government's evidence "is nothing but
speculation," the Government did not obtain a proper tax
assessment against Selgas, and "the Government has
produced insufficient. . . evidence to support the
indictment." ECF No. 111 at 1-2. The Court disagrees
with these arguments.
the Court finds that the Indictment should not be dismissed
solely because the Government may not have obtained a formal
assessment of taxes against Defendants. See ECF No.
111 at 2. A "formal assessment" of a tax is not
required to sustain a conviction for a conspiracy under 18
U.S.C. § 371, see United States v. Tinghui Xie,
942 F.3d 228, 240 (5th Cir. 2019) (citations omitted)
(setting forth the elements of a conspiracy charge), or for
tax evasion under 26 U.S.C. § 7201, see United
States v. Nolen, 472 F.3d 362, 377 (5th Cir. 2006)
(quoting United States v. Hogan, 861 F.2d 312, 315
(1st Cir. 1988)).
the Court finds that the Motion is premature insofar as it
asserts that the Government lacks the evidence to obtain a
conviction. See Fed. R. Crim. P. 29(a) (requiring a
motion for acquittal based on insufficiency of the evidence
to be made "[a]fter the [G]ovemment closes its evidence
or after the close of all the evidence").
Defendants' disagreement with the allegations in the
Indictment is insufficient to warrant its dismissal. Rather,
when analyzing the sufficiency of the indictment, the Court
must accept the allegations of the indictment as true.
Kay, 359 F.3d at 742, In fact, the Court "must
deny a motion to dismiss [the indictment] if the motion
relies on disputed facts." United States v. USPlabs,
LLC, 338 F.Supp.3d 547, 557 (N.D. Tex. 2018) (citing
United States v. Covington, 395 U.S. 57, 60 (1969)).
Here, the Indictment sets forth in substantial detail the
manner and means of the alleged conspiracy to defraud the
Government and of the alleged tax evasion. See
Indictment ¶¶ 12-47, 50-51. Moreover, the
Indictment follows the language of 18 U.S.C. § 371 and
26 U.S.C § 7201. Therefore, the Court finds that the
Indictment sufficiently states the charges against
Defendants. See Thomas, 348 F.3d at 82. Accordingly,
the Court denies Defendants' Motion to Dismiss.
See ECF No. 111.
Statute of Limitations
the Court found that Defendants timely filed their Joint
Motion to Dismiss Based on Statute of Limitations,
see ECF No. 116, the Court would still deny this
Motion because the Government timely brought the Indictment.
conspiracy charge under 18 U.S.C. § 371 and a tax
evasion charge under 26 U.S.C. § 7201 are subject to a
six-year statute of limitations. See United States v.
Heard,709 F.3d 413, 427 (5th Cir. 2013) (citations
omitted); United States v. Irby,703 F.3d 280, 284
(5th Cir. 2012). The limitations period for a conspiracy
charge begins to run "from the last overt act of the
conspiracy alleged in the indictment and proved at
trial.'" United Stales v. Hobbs, Nos.
4:13-CV-222-A, 4:11-CR-151-A-2, 2013 WL 3356288, at *4 (N.D.
Tex. July 2, 2013) (quoting United States v. Mann,161 F.3d 840, 856 (5th Cir. 1998)). The limitations period
for tax evasion begins to run from the latter of: (1) the
defendant's willful failure to file a tax return; or (2)
a defendant's last act of evasion. See Irby, 703
F.3d at 284. The Indictment in this case alleges that Selgas
and Green engaged in overt acts in furtherance of the
conspiracy and tax evasion through the Summer ...