Free Reply to Response - District Court of Arizona - Arizona

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LAW OFFICES OF MICHAEL J. BRESNEHAN, P.C. Michael J. Bresnehan, Esquire 1761 East McNair Drive, Suite 101 Tempe, AZ 85283-5002 480-345-7032 [email protected] State Bar No.: 009415 Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. KINDY JONAGAN, Defendant.

Case No.: CR-04-00820-006-PHX-FJM

REPLY TO UNITED STATES' RESPONSE TO DEFENDANT JONAGAN'S MOTION TO SEVER

COMES NOW the defendant, Kindy Jonagan, and hereby replies to the United States' Response To Defendant Jonagan's Motion To Sever. Defendant Jonagan was not charged in Counts 50-69 (false statements on loan applications) or in Counts 70-73 (failure to account for and pay over withholding and FICA taxes) presumably because the government did not believe she was involved in those distinct and unrelated crimes. The government clings to the dubious and ultimately unsupportable notion that defendant, Jonagan, was a managerial level employee who consciously obstructed customers from seeking redress after they concluded they did not want the product or service that they purchased from defendant Sloniker's company. In reality, Jonagan was a clerical employee who worked under the supervision of managers who were not indicted in this case. She was indicted because of her

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familial relationship (sister) with defendant Harvey Sloniker, Jr. (Sloniker). Jonagan's primary job function was to reconcile lists of completed sales to specific customers, generated by a different department within the company, to lists of monies received through wire transfers from those customers, also generated by a different department within the company. She then investigated those instances where a sale was made, but no money was received. She had no policy level decision-making authority. She did not attend managers' meetings, and had absolutely nothing to do with the marketing end of the business. To the extent that she was involved in customer relations, it was only peripheral, and consisted largely of mailing out refunds (approved by her supervisor) to unsatisfied customers after confirming the customers had actually paid for the product or service. Jonagan had no managerial or policy-making authority with respect to customer relations. Even assuming, arguendo, that the government had evidence supporting its theory that Jonagan was a knowing and active participant in an alleged scheme by Sloniker's company to defraud the public, it has failed to explain what that alleged scheme has to do with the loan fraud alleged in Counts 50-69. The gravamen of those Counts is that Sloniker and Desiderio attempted to convince one or more lending institutions to loan Sloniker money to build himself a house, and that they submitted inflated financial information to do it. That alleged conspiracy and scheme to defraud one or more lenders was not only unrelated to Jonagan's real involvement in Sloniker's company, but was also unrelated to the day-to-day operations of that company. Moreover, Jonagan had nothing to do with the tax withholding practices of Sloniker's company. She was not an accountant for that company, and had no managerial or policy-making input regarding the company's withholding practices. It is, to say the least, a stretch, to assert that the allegedly illegal marketing practices of Sloniker's company are somehow conceptually wed to

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the company's tax withholding practices, let alone that Jonagan played a role in those practices. Tax fraud does not naturally flow from telemarketing fraud. Loan fraud does not naturally flow from telemarketing fraud. See, e.g., U.S. v. Sarkisian, 197 F.3d 966 (9th Cir.1999) citing U.S. v. Golb, 69 F.3d 1417 (9th Cir. 1995), both cases suggesting that such must be the case. See also, U.S. v. Halper, 590 F.2d 422 (2nd Cir. 1978), where the Court held that for joinder to be proper the government must prove that the offenses are so intertwined that proof of one will lead to the proof of the other. The witnesses and evidence will likely be specific to the three distinct alleged criminal undertaking described, respectively, in Counts 1-49, 50-69, and 70-73. Contrary to the government's assertion, the three distinct alleged schemes do not involve the same cast of characters. Proving one will not prove either of the others. The government is incorrect in its assertion that defendant Jonagan carries the burden of establishing prejudice before she is entitled to severance. That is only the case where the original joinder was initially proper. Severance is required unless the Rule 8 standards are met even in the absence of prejudice. U.S. v. Lane, 474 U.S. 438, 449 n.12 (1986). Even if it were defendant Jonagan's burden to show prejudice, it would be patently, inherently and obviously prejudicial to join her case (Counts 1-49) with the other two cases that have nothing to do with her. Even without joinder, Jonagan will have to overcome the government's attempt to establish guilt by mere association. With joinder, Jonagan will have that much greater a challenge to disassociate her actions from those of Sloniker if he is further vilified in Counts 50-73 during Jonagan's trial. WHEREFORE, for the aforementioned reasons, the defendant, Kindy Jonagan, moves this court to sever defendant Jonagan (Counts 1-49) from defendants Nail, Desiderio and Harvey Sloniker, Jr. (Counts 50-69) and from defendants Harvey Sloniker, Jr. and John Desiderio (Counts

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70-73), and further moves this Court to sever defendant Tye Sloniker (Counts 1-49) from defendants Kindy Jonagan and Harvey Sloniker, Jr. (Counts 1-49). RESPECTFULLY SUBMITTED, this 24th day of October, 2005. MICHAEL J. BRESNEHAN, P.C.

s/ Michael J. Bresnehan Michael J. Bresnehan Attorney for Defendant

CERTIFICATE OF SERVICE 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: Bruce Blumberg, Rachel Hernandez, Gary Restaino, Jeanette Alvardo, Thomas Hoidal, Ivan Mathew, Gregory Parzych and the Honorable Frederick J. Martone. I hereby certify that on October 24, 2005, I served a courtesy copy of the attached document by COURIER SERVICE on the following: Honorable Frederick J. Martone.

s/ Michael J. Bresnehan

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