Free Reply to Response - District Court of Arizona - Arizona

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MATHEW & MATHEW, P.C. IVAN K. MATHEW (SBN: 011610) SUSAN T. MATHEW (SBN: 012916) 1850 N. Central Avenue, Suite 1910 Phoenix, Arizona 85004 Tel: (602) 254-8088 / Fax: (602) 254-2204 e-mail: [email protected] Attorneys for Defendant, RICHARD NAIL UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. (Assigned to the Hon. Frederick J. Martone) HARVEY L. SLONIKER, JR., TYE SLONIKER, KINDY JONAGAN, ROBERT SHINN, RICHARD NAIL, and JOHN DESIDERIO, Defendants.
CASE NO. 04-CR-820-PHX-FJM

REPLY RE MOTION TO SEVER

Counts 2 through 38 concern Telemarketing Fraud. Count 50 and 51 through 69 concerns Bank Loan Fraud. Of all of the Bank Fraud Counts, Count 50 alleges that Mr. Nail overstated income in order to assist Mr. Sloniker in obtaining a loan. Counts 70 through 73 involve Harvey Sloniker's Non-Payment of Employment Taxes. Conspicuously absent from the Government's response is the fact that none of the defendants other than Mr. Sloniker were ever charged with a failure to submit payroll taxes. (Counts 70-73.) In requesting that the Court adjudicate all the matters together, i.e., the Government cites the cases of United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir. 1988) and United States v. Roselli, 432 F.2d 879, 899 (9th Cir. 1970.) Whitworth involved tax evasion charges stemming from the underlying illegal activity. More importantly, there was only one

defendant in Whitworth, unlike this case. In this particular case, the Government's claim is the
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opposite from that in Whitworth. There is no argument that the monies from the business are part of the loan fraud. Ironically, the Government is now claiming that the amounts utilized in the loan documents are not generated from the business. The alleged illegal activity has no relevance to the loans. The Government should not be able to try a case with their fingers on the scales with three unrelated transactions. CONCLUSION It is respectfully requested that this Court sever the telemarketing and tax cases from the loan case. RESPECTFULLY SUBMITTED this 24th day of October, 2005. MATHEW & MATHEW, P.C By: _____s/Ivan K. Mathew______ Ivan K. Mathew Attorneys for RICHARD NAIL
CERTIFICATE OF SERVICE United States of America v. Sloniker, et al., 04-CR-820-PHX-FJM

I hereby certify that on October 24, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Paul K. Charlton, United States Attorney Rachel C. Hernandez Gary M. Restaino, Assistant U.S. Attorney e-mails: [email protected];
[email protected] Attorneys for Plaintiff United States of America

Gregory T. Parzych Maricopa Legal Defenders Office e-mail: [email protected] Attorneys for Defendant Tye Sloniker

Thomas M. Hoidal Hoidal & Hannah, P.C. e-mail: [email protected] Attorneys for Defendant John Desiderio Jeanette E. Alvarado Asst. Federal Public Defender e-mail: [email protected] Attorneys for Defendant Robert Shinn
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Bruce Blumberg Blumberg & Associates
[email protected] Attorneys for Harvey Sloniker

Michael J. Bresnahan e-mail: [email protected] Attorneys for Defendant Kindy Jonagan s/Candace Deegan
Filed 10/24/2005 Page 2 of 2