Free Motion to Sever Defendant - 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. HARVEY L. SLONIKER, JR., TYE SLONIKER, KINDY JONAGAN, ROBERT SHINN, RICHARD NAIL, and JOHN DESIDERIO, Defendants.
CASE NO. 04-CR-820-PHX-FJM

DEFENDANT RICHARD NAIL'S MOTION TO SEVER DEFENDANTS AND MEMORANDUM OF POINTS AND AUTHORITIES (Assigned to the Hon. Frederick J. Martone)

Richard Nail, represented by Ivan K. Mathew, and pursuant to Fed.R.Crim.P. Rules 8(b) and 14, hereby moves this Court to sever Defendant, Richard Nail, from co-defendants, Harvey L. Sloniker, Jr. and Kindy Jonagan, for the reasons set forth in the accompanying memorandum of points and authorities. RESPECTFULLY SUBMITTED this 29th day of September, 2005. MATHEW & MATHEW, P.C By: s/Ivan K. Mathew Ivan K. Mathew Attorneys for RICHARD NAIL

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. at 976. A.

MEMORANDUM OF POINTS AND AUTHORITIES There is a Misjoinder Pursuant to Fed.R.Crim.P. 8. Defendant, Richard Nail, is charged with multiple counts of mail and wire fraud, money laundering and conspiracy. Counts 1-49 involve allegations of all Defendants except John Desiderio relating to the alleged telemarketing scheme. Counts 50-59 of the Indictment involve allegations that Defendants Harvey Sloniker, Jr., Richard Nail and John Desiderio submitted false loan and/or credit applications. Counts 70-73 involve the alleged failure of Mr. Harvey Sloniker, Jr. to pay federal withholding taxes. Rule 8(b) of the Federal Rules of Criminal Procedure provides that two or more Defendants may be charged in the same indictment if the Defendants are "alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Joinder is not proper in cases that would substantially prejudice the right of the Defendants to a fair trial. See, e.g., United States v. Lane, 474 U.S. 438, 449 n.12 (1986) (severance is required unless the Rule 8 standards are met, "even in the absence of prejudice..."). The Ninth Circuit in U.S. v. Sarkisian, 197 F.3d 966 (9th Cir. 1999) held in a case mandating severance: This is not an instance where one criminal activity naturally flows from separate criminal conduct. Further, there was no substantial overlap in the evidence presented for the car and extortion counts. Still, we conclude that under the circumstances here involved, these factors alone do not support necessary "logical relationship" between the separate counts. We hold that the district court erred in joining the extortion and trafficking counts.

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The Indictment improperly joins Defendants charged with telemarketing fraud and conspiracy (Counts 1-49) with Defendants charged with conspiracy to commit loan fraud (Count 50 against Harvey Sloniker, Jr., Richard Nail and John Desiderio), and failure to account for and pay over withholding and FICA taxes (Counts 70-73 against Harvey Sloniker, Jr.). These are three unrelated sets of transactions having no overlap. B. Severance is Also Appropriate Under Fed.R.Crim.P. 14(a). Under Rule 14, Fed.R.Crim.P., the Court may order a severance of Defendants if a particular Defendant is prejudiced by a joinder. Prejudice can be shown where "markedly different degrees of culpability" are involved. See United States v. Baker, 98 F.3d 330, 335 (8th Cir. 1996) cert. denied, 520 U.S. 1179 (1997) (risk of substantial prejudice from spillover effect of conspiracy evidence when Defendant was not part of conspiracy was too high to be cured by less drastic measures than severance; conviction reversed). Severance is also mandated under Zafiro v. U.S., 506 U.S. 534, 539 (1993) when compelling evidence is not admissible against one Defendant is to be introduced against another Defendant. Id. See also, United States v. Briscoe, 896 F.2d 1476, 1498 (7th Cir. 1990) ("... if the evidence creates an unacceptably high inference of wrongdoing against another defendant, the District Court should either exclude the evidence or sever the trials"). The government has informed defense counsel that it may introduce F.R.Evid. 404(b) evidence of other crimes, violations of court orders against Harvey Sloniker, Jr. and Kindy Jonagan. Having misjoinded charges in violation of Rule 8 and also uncharged acts under 404(b) would create an unfair prejudice precluding a fair trial for Richard Nail. CONCLUSION It is respectfully requested that Counts 1-50 (Telemarketing) be severed from Counts 51-69 (Financial Fraud) and that Counts 70-73 (Withholding Taxes) be severed from the other Counts previously mentioned. It is further requesting that in the event the government seeks to introduce 404(b) evidence against Kindy Jonagan and Harvey Sloniker, Jr., that Richard Nail's trial be severed from those Defendants.
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It is expected that excludable delay under Title 18 U.S.C. §3161(h)(1)(F) will occur as a result of this motion or from an order based thereon. RESPECTFULLY SUBMITTED this 29th day of September, 2005. MATHEW & MATHEW, P.C By: s/Ivan K. Mathew Ivan K. Mathew Attorneys for RICHARD NAIL

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s/Karen Gawel

CERTIFICATE OF SERVICE I hereby certify that on September 30, 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

Michael J. Bresnahan e-mail: [email protected] Attorneys for Defendant Kindy Jonagan

Bruce Blumberg Blumberg & Associates [email protected] Attorneys for Harvey Sloniker

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