Free Reply to Response - District Court of Arizona - Arizona

1 LAW OFFICES OF MICHAEL J. BRESNEHAN, P.C. Michael J. Bresnehan, Esquire 2 1761 East McNair Drive, Suite 101 Tempe, AZ 85283-5002 3 480-345-7032 [email protected] 4 State Bar No.: 009415 5 Attorney for Defendant 6 7 8 9 10 11 vs. 12 KINDY JONAGAN, 13 14 15 COMES NOW the defendant, Kindy Jonagan, by and through the undersigned attorney, and Defendant. United States of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CR-04-00820-006-PHX-FJM DEFENDANT JONAGAN'S REPLY TO GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTION TO THE PSR

16 hereby presents her reply to the government's response to defendant, Jonagan's objection to the 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cr-00820-FJM Document 253 Filed 05/18/2006 Page 1 of 5 s/ Michael J. Bresnehan Attorney for Defendant RESPECTFULLY SUBMITTED this 18th day of May, 2006 by MICHAEL J. BRESNEHAN, P.C. presentence report, as set forth in the accompanying memorandum of points and authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES

2 MINIMAL ROLE IN THE OFFENSE 3 4 5 6 The government acknowledges that Kindy Jonagan's role in the offense was minimal, and agrees that a 4-point reduction in the guidelines offense level would be appropriate. However, the defendant wishes to reemphasize that her knowledge that customers were probably being promised

7 a major credit card, while receiving something else, was acquired indirectly (i.e., by inference 8 through customer complaints, rather than from management), and very late in the game. Kindy did 9 not review, and, indeed, did not have access to, the sales scripts used by the TSRs. All she had 10 11 12 13 14 access to were the verification scripts from the "genies". The use of a pseudonym was for the purpose of avoiding uninvited contact of a personal nature by customers. It is a common and largely benign practice within that industry. Finally, and once again, Ms. Jonagan wishes to emphasize that the misleading statements

15 made to some of the customers during the Spring of 2002 regarding the status of the delivery of the 16 fulfillment packets were not made maliciously or with any knowledge or belief that the packets 17 18 19 20 would not be delivered. Those statements were made after Harvey Sloniker had met with Kindy and members of the customer service department and had assured them that the delays that the company had experienced in delivering the packets had been solved and everything would be fine.

21 While blaming the delays in delivery of the packets on wrong zip codes, etc., was self-serving (as it 22 made dealing with sometimes irate customers more bearable), it was done with the genuine belief 23 that the packets were on the way. 24 25 26 27 OBSTRUCTION OF JUSTICE The government is correct in asserting that Kindy helped Harvey Sloniker to "circle the wagons" once the civil enforcement action was under way. However, she did so lawfully. At no

28 time did she advise Elaine Morewitz to lie to the Grand Jury or anyone else, for that matter. Case 2:04-cr-00820-FJM Document 253 2Filed 05/18/2006 Page 2 of 5

1 Rather, on several occasions, she advised Ms. Morewitz that Harvey Sloniker had hired legal 2 counsel for everyone including Ms. Morewitz and that she could and probably should invoke her 3 4 5 6 right to remain silent, and contact her counsel. Ms. Jonagan and Ms. Morewitz were not just coworkers. They were close friends. That closeness is everywhere evident in the taped conversations between the two. See partial transcript attached hereto as exhibit "A". They met socially after

7 hours and shared information about all aspects of their respective lives. They commiserated with 8 each other over the investigation that was underway. Kindy's above-mentioned advice was not 9 merely self-serving. Rather, it was the expression of one friend helping another. Advising a friend 10 11 12 13 to invoke their constitutional right to remain silent does not, per se, constitute obstruction of justice. See, e.g. Cole v. United States, 329 F.2d 437 (9th Cir. 1964) attached hereto as exhibit "B". The question of obstruction goes to the motive of the individual giving the advice. If, as here, the

14 motive was to simply protect a friend, there is no obstruction. 15 "OVERSTATEMENT" OF LOSS AMOUNTS 16 17 18 19 20 At the peak of her earnings at Corporate Industries, Kindy Jonagan was netting, after taxes, approximately $2,800 per month, a sum so small that she probably couldn't even have entered the housing market. She was not promised any future windfall or ownership interest in the company or any advancement into upper management. Her salary, while slightly more than she had/has earned

21 elsewhere, was reasonably commensurate with her duties given the then-prevailing job market. 22 Kindy gained little, if any, incremental financial reward for her involvement in the company. Thus, 23 any substantial step-up in offense level for Loss Amounts would be simply unfair. 24 25 26 27 ABERRANT BEHAVIOR The government suggests that Ms. Jonagan participated in what she knew to be a corrupt operation for the entire 10-month indictment time period. That simply isn't true. Because Ms.

28 Jonagan did not attend management, strategy or policy meetings, and did not have access to the Case 2:04-cr-00820-FJM Document 253 3Filed 05/18/2006 Page 3 of 5

1 sales scripts, and because she was not a regular member of the customer service department, she did 2 not begin to sense the company was misrepresenting its product until the spring of 2002. Even 3 4 5 6 then, she struggled with denial, not wanting to believe that her brother, whom she loved and admired, would stoop to defrauding the public. Clearly, her long history of decent, productive conduct, followed by her resumption of such positive conduct after the indictment, demands some

7 consideration under U.S.S.G. 5K2.20. Indeed, her conduct might be viewed as an unbroken and 8 contentious act that when viewed against the backdrop of her entire life, was clearly situational and 9 aberrant. 10 11 12 13 14 SENTENCING RECOMMENDATION The government's recommendation of a prison sentence is contrary to the recommendation of probation by the Probation Department, and would be uncalled for under 18 U.S.C. 3553(a). The presentence writer is recommending a downward departure from the guidelines that

15 would result in a 5-year term of probation, with conditions, inter alia, that Ms. Jonagan serve 180 16 days on house arrest, pay a $12,500 fine, and do community service. It should be noted that Kindy 17 18 19 20 Jonagan currently resides with and provides financial support for her sister-in-law and her nieces, who are struggling financially. She has a good job and is a valued employee. She is currently an asset to the community. She would remain so, and continue to give back to the community if the

21 presentence writer's recommendations were followed. The proposed combination of sentencing 22 features includes a fair and reasonable balance of punishment, deterrence, rehabilitation, and 23 restitution to the community for Kindy's role in the offense. On the other hand, a prison sentence 24 25 26 27 28 would interrupt the progress Kindy has made in rejoining productive society. It would prevent Kindy from giving back to the community, it would probably detract from her rehabilitation, and it would be entirely unnecessary for the protection of the community. WHEREFORE, for the aforementioned reasons, the defendant respectfully requests that this

Case 2:04-cr-00820-FJM

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1 Court follow the recommendations of the Probation Department in all respects. 2 3 4 5 6 7 8 9 s/ Michael J. Bresnehan Attorney for Defendant CERTIFICATE OF SERVICE MICHAEL J. BRESNEHAN, P.C. RESPECTFULLY SUBMITTED this 18th day of May, 2006 by

X I hereby certify that on May 18, 2006, 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 10 to the following CM/ECF registrants: Craig W. Haraga 11 Gary Restaino, Esq. Assistant U.S. Attorney US Probation Office 12 X I hereby certify that on May 18, 2006, I served the attached document as a courtesy copy by 13 COURIER SERVICE on the following: 14 Honorable Frederick J. Martone 15 United States District Judge 16 X I hereby certify that on May 18, 2006, I served the attached document by Mail on the following, who are not registered participants of the CM/ECF System: 17 Kindy Jonagan 18 Defendant 19 20 21 22 23 24 25 26 27 28 Case 2:04-cr-00820-FJM Document 253 5Filed 05/18/2006 Page 5 of 5 s/ Michael J. Bresnehan