Free Motion to Sever Defendant - 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 DEFENDANT KINDY JONAGAN'S MOTION TO SEVER DEFENDANTS AND MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the defendant, Kindy Jonagan, by and through undersigned attorney, and pursuant to Rules 8(b) and 14, Fed.R.Crim.P., hereby moves this Court to sever defendant, Jonagan, from her co-defendants in the manner and for the reasons set forth in the accompanying memorandum of points and authorities. RESPECTFULLY SUBMITTED, this 29th day of September, 2005. MICHAEL J. BRESNEHAN, P.C.

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

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MEMORANDUM OF POINTS AND AUTHORITIES Defendant, Kindy Jonagan, is charged with multiple counts of mail and wire fraud, money laundering and conspiracy to commit same. The government is expected to present witnesses and other evidence at trial in its attempt to establish that the company that Ms. Jonagan worked for defrauded thousands of consumers through a telemarketing scheme whereby consumers were allegedly promised a major credit card in exchange for a substantial fee. The government will also attempt to prove that Ms. Jonagan, who was little more than a glorified clerk for the company, somehow conspired with the company's principals to engage in wire fraud, money laundering and promotional money laundering. The allegations against Ms. Jonagan are contained in Counts 1-49 of the Indictment. All of the other co-defendants except John Desiderio, are defendants in those counts. Counts 1-49 relate exclusively to the activities surrounding the telemarketing scheme. Count 50 of the Indictment involves allegations that defendants Harvey Sloniker, Jr., Richard Nail and John Desiderio allegedly conspired to defraud several banking institutions by submitting false information on loan and credit applications. Counts 51-69 allege specific acts of fraud by those same individuals, and include allegations that those three individuals knowingly made false statements on loan applications. Counts 70-73 involve allegations that defendant, Harvey Sloniker, Jr., willfully failed to pay over to the Internal Revenue Service approximately $224,000.00 of the federal income and FICA taxes withheld from employees of his company. Conceptually, the Indictment contains three separate and distinct "cases". None of the evidence in the two "cases" contained in Counts 50-73 is expected to relate to Ms. Jonagan. Moreover, the evidence that the government is likely to present at trial is expected to be case specific--that is, the evidence presented to prove that allegations in Counts 1-49 is not likely to be

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necessary to prove the allegations in Counts 50-69, and so forth. With the above in mind, it would appear that defendant, Jonagan, has been misjoined with defendants John Desiderio, Richard Nail and Harvey Sloniker, Jr. with respect to Counts 50-69. Additionally, it would appear that Ms. Jonagan has been misjoined with Harvey Sloniker, Jr. with respect to Counts 70-73. Rule 8(b) of the Federal Rules of Criminal Procedure states 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." The purpose of joinder of defendants under Rules 8(b) is to promote judicial economy and efficiency. Bruton v. U.S., 391 U.S. 123 at 132 (1968). Regardless, joinder is not proper in cases that would substantially prejudice the right of the defendants to a fair trial. Id. 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..."). In cases where multiple defendants are charged, Rule 8(b) governs joinder. United States v. Gentile, 495 F.2d 626, 628 n.2 (5th Cir. 1994). In this case, the indictment defies Rule 8(b) by improperly joining 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., Nail and Desiderio), false statements on loan and credit applications (Counts 51-69 against Harvey Sloniker, Jr., Nail and Desiderio), and failure to account for and pay over withholding and FICA taxes (Counts 70-73 against Harvey Sloniker, Jr.). Recently, the Ninth Circuit found error in the joinder of unrelated counts against even the same defendants charged in other counts. In United States v. Sarkisian, 197 F.3d 966 (9th Cir.

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1999), four defendants, Mikayelyan, Semenov, Sarkisian, and Ivanchikov, appealed from convictions of numerous counts of trafficking in stolen vehicle parts, and one count of conspiracy to violate the Motor Vehicle Theft Prevention Act. In addition to these counts, Mikayelyan, Sarkisian, Semenov and another defendant were charged with attempted extortion. However, the District Court granted new trials to the latter three defendants. After reviewing the cases under Rule 8(b), the Court concluded that the district court erred in trying the extortion and trafficking counts together: We hold that the district court erred in joining the extortion and car counts because there is not a sufficient logical relationship between them. This is not an instance where one criminal activity naturally flows from separate criminal conduct. See United States v. Golb, 69 F.3d 1417, 1426 (9th Cir. 1995) ("Obviously the laundering of drug proceeds through the purchase of airplanes to smuggle drugs is logically related to drug smuggling."); Sanchez-Lopez, 879 F.2d at 551 (holding that drug smuggling and transportation of illegal aliens are logically related because "illegal aliens could thwart ... immigration laws if they can support themselves in this country through the money obtained through [drug smuggling]"); United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987) (stating that tax evasion and conspiracy to distribute heroin are logically related where unreported income is derived from heroin sales). Nor is this an instance where all the criminal activities logically fall under the umbrella of one big conspiracy. See Ford, 632 F.2d at 1372 (holding various criminal activities were "all part of an ongoing scheme to enrich [union trust fund trustees at the expense of the trusts"]). Further, there was no substantial overlap in the evidence presented for the car and extortion counts. See Id. at 1372 (holding that joinder under rule 8(b) of different sets of crimes was not error where evidence submitted to prove one set of crimes was also relevant to the other set); Vasquez-Velasco, 15 F.3d at 844 (same). The only meaningful connection between the extortion count and the car counts are that some of the same defendants were charged in both counts, and the extortion incident occurred while the car scheme was ongoing. See Golb, 69 F.3d at 1425-26 (stating that a "common cast of characters" and a short period of time between charged transactions both support finding a logical relationship between counts). Still, we conclude that under the circumstances here involved, these factors alone do not support necessary "logical relationship" between the separate counts. Rather, it seems that during the scheme to steal cars and auto parts, Mikayelyan agreed to commit an unrelated and isolated incident of extortion. We hold that the district court erred in joining the extortion and trafficking counts. Id. at 976.

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Clearly, the government has done the same thing in this case as it did in Sarkisian. It has joined unrelated counts involving alleged tax evasion and alleged false statements on loan applications with the telemarketing fraud case. Again, as in Sarkisian, the only meaningful connection between the tax evasion and false loan application counts, on the one hand, and the telemarketing fraud counts, on the other, is that some of the same defendants are charged in each of the three "cases". Clearly, no sufficient logical relationship exists between the telemarketing fraud alleged in Counts 1-49 and the false loan applications allegations in Counts 50-69, or the tax fraud allegations in Counts 70-73. Nor is there any substantial overlap in evidence. Defendant Jonagan is entitled to a severance due to her misjoinder with these other defendants. Specifically, her trial should not include Counts 50-73 Even assuming, arguendo, that the "case" against Kindy Jonagan in Counts 1-49 was properly joined under Rule 8 with the "case" against defendants Nail, Desiderio and Harvey Sloniker, Jr. in Counts 50-69 and the "case" against defendants Harvey Sloniker, Jr. and Desiderio in Counts 70-73, those defendants should nevertheless be severed under Rule 14(a), Fed.R.Crim.P. Under Rule 14, Fed.R.Crim.P., the Court may order a severance of defendants if a particular defendant is prejudiced by a joinder. The Court must assess on a case-by-case basis the possible prejudice to a defendant in a joint trial. United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). The Ninth Circuit has recognized several sources of prejudice improperly joined defendants may suffer. United States v. Sarkisian, supra, 197 F.3d at 977. One is where defendants with "markedly different degrees of culpability" are involved. Id. Where a defendant is charged in only 20 of 73 counts and joined with five other defendants, one of whom is charged in every count, prejudice is apparent. See United States v. Donaway, supra., (less than 50 pages of 23,000 page transcript relevant to defendant Donaway requiring severance). Many of the counts in this case deal with bank fraud and tax evasion-counts in which defendant, Jonagan,

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played no role whatsoever. Co-conspirators' statements that a jury should not consider against defendant Jonagan, and which would not be admissible against defendant Jonagan if she were tried alone, would be admitted at a joint trial. This risk of prejudice from the spillover effect in this case is clearly too high to be cured by less drastic measures such as limiting instructions given by the District Court. 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). In Zafiro v. United States, 506 U.S. 534 (1993) the Supreme Court adopted a two-part test for determining whether a court should sever a defendant's trail from that of co-defendants. First, the defendant must demonstrate that he would be prejudiced by a joint trial. In Zafiro, the Supreme Court concluded that mutually antagonistic defenses are not prejudicial per se. Second, the Court must determine whether severance is the proper remedy for the prejudice. In some circumstances severance is the only permissible remedy. [W]hen defendants properly have been joined under Rule 8(b), a district court should grant severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Id. at 539. Severance is clearly mandated under Zafiro when compelling evidence that is not admissible against one defendant is to be introduced against another defendant. See, e.g., 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"); United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980)

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(mandating severance where limiting instructions "could not provide their intended protection against prejudice in the face of emotional evidence.") It is expected that the government will introduce a substantial amount of evidence having to do with Counts 50-73 that have nothing to do with Ms. Jonagan. Evidence of the alleged acts underlying Counts 50-73 are likely to reinforce the notion that Harvey Sloniker, Jr. and Richard Nail acted dishonestly in their dealings with several banks, and, thus, can not be believed when they assert their innocence regarding the telemarketing counts. Unfortunately, Kindy Jonagan's fate is likely to follow that of defendant Harvey Sloniker, Jr. and Richard Nail in any trial on Counts 1-49, given that she was an employee of Harvey Sloniker, Jr.'s telemarketing company, and is the sister of Mr. Sloniker, and, thus, a putative "insider". Finally, defendant Jonagan joins defendant Harvey Sloniker's Rule 14, Fed.R.Crim.P., Motion to Sever the Trial of Tye Sloniker on Counts 1-49 from the trial of Harvey Sloniker, Jr. and Kindy Jonagan on those same counts. It is clear that a number of incriminating statements attributable to Tye Sloniker will likely be admitted at any trial against Tye Sloniker on Counts 1-49. Ms. Jonagan will not likely be able to cross examine the declarant. Limiting instructions may be available, but would provide a dubious remedy given human nature. Admittedly, the depth of the conflicting and antagonistic defenses in the present case is not entirely known to Ms. Jonagan. Federal Rule of Criminal Procedure 14(b) provides that "[b]efore a ruling on a defendant's motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any of defendant's statements that the government intends to use as evidence." Fed.R.Crim.P. 14(b). Since Ms. Jonagan has not received all witness statements connected to this case, it is impossible to ascertain whether defenses advanced by the remaining defendants are antagonistic as well. For

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this reason, Ms. Jonagan requests that this Court require the Government to produce for in camera review any statements or other evidence tending to demonstrate that severance is necessary in this case due to Bruton or antagonistic defense issues. 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 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 29th day of September, 2005. MICHAEL J. BRESNEHAN, P.C.

s/ Michael J. Bresnehan Michael J. Bresnehan Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that on September 29, 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 Martone. I hereby certify that on September 30, 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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