Defendant Jonathan Markovich’s Motion to Sever Bank Fraud Counts (Counts 34 and 35) and Incorporated Memorandum of Law — United States v. Markovich (Dkt. 158, S.D. Fla.)

Summary

Defendant Jonathan Markovich's motion to sever the bank fraud counts (Counts 34 and 35), with incorporated memorandum, in United States v. Jonathan Markovich, et al., Case No. 21-CR-60020, in the U.S. District Court for the Southern District of Florida, entered March 10, 2021 as Document 158. Counts 34 and 35 allege that he submitted two PPP loan applications to banks without disclosing information about the applicant entities. He argues that these counts are not of the same character and are unconnected to the other charges, which concern health care fraud, kickbacks and money laundering involving substance abuse treatment facilities, and asks that they be tried separately.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Record facts

Full text

Case 0:21-cr-60020-WPD Document 158 Entered on FLSD Docket 03/10/2021 Page 1 of 4




                               UNITED STATES DISTRICT COURT
                               SOUTHERN DISTRICT OF FLORIDA

                          Case No. 21-CR-60020-DIMITROULEAS/SNOW

  UNITED STATES OF AMERICA,

          Plaintiff,
  v.

  JONATHAN MARKOVICH, et. al.,

          Defendant.
                                              /

        DEFENDANT JONATHAN MARKOVICH’S MOTION TO SEVER BANK FRAUD
       COUNTS (COUNTS 34 AND 35) AND INCORPORATED MEMORANDUM OF LAW

          Defendant Jonathan Markovich (“J. Markovich” or “Mr. Markovich”) through undersigned

  counsel hereby files his Motion to Sever Bank Fraud Counts (Counts 34-35) of the Indictment and

  Incorporated Memorandum of Law pursuant to Federal Rules of Criminal Procedure 8(a) and 14.

  In support, J. Markovich states as follows:

                                         I.       Introduction

          The Government has charged J. Markovich with a variety of acts of misconduct, all relating

  to his alleged improper operation of substance abuse treatment facilities. J. Markovich is also

  charged with two counts of fraudulently applying for PPP loans. These bank fraud counts are not

  of the same character, do not arise out of the same act or transaction, and are not connected with

  the other counts. Their inclusion in this case also prejudices J. Markovich. Therefore, the bank

  fraud counts should be severed and tried separately.

                                     II. Procedural Posture

          The Complaint herein was filed on September 25, 2020. J. Markovich was arrested and

  appeared to answer the Complaint on September 30, 2020. On October 28 and 29, 2020, the Court

Case 0:21-cr-60020-WPD Document 158 Entered on FLSD Docket 03/10/2021 Page 2 of 4




  conducted a preliminary hearing in this matter. The Indictment was filed on January 20, 2021.

                                          III. Legal Standard

           “A defendant’s seeking of separate trials for different counts in an indictment requires a

  two-part analysis. . . . First, a court must consider whether joinder of charges is proper under Rule

  8(a), Fed. R. Crim. P. . . . If so, the court must determine whether compelling prejudice will result

  from a trial of the joined counts, thereby requiring severance.” United States v. Charlestain, 2012

  WL 13186044, at *2 (S.D. Fla. June 18, 2012) (Rosenbaum, M.J.) (citing United States v. Hersh,

  297 F.3d 1233, 1241 (11th Cir. 2002)).

           Pursuant to Federal Rule of Criminal Procedure 8(a), “[j]oinder of offenses is proper where

  they ‘are of the same or similar character . . . or are connected with or constitute parts of a common

  scheme or plan.’” United States v. Barsoum, 763 F.3d 1321, 1336 (11th Cir. 2014) (quoting Fed.

  R. Crim. P. 8(a)); see also United States v. Martinez Canas, 595 F.2d 73, 78 (1st Cir. 1979) (Fed.

  R. Crim. P. 8(a) prohibits “the joining in a single count of two or more distinct and separate

  offenses.”).

           Federal Rule of Criminal Procedure 14(a) “provides relief from prejudicial joinder by

  permitting the district court to order separate trials of counts “[i]f the joinder of offenses . . . in an

  indictment . . . appears to prejudice a defendant.” United States v. Pearson, 832 F. App’x 679, 685

  (11th Cir. 2020) (quoting Fed. R. Crim. P. 14(a)); see also United States v. Nelson, 2011 WL

  1560587, at *3 (M.D. Fla. Apr. 25, 2011) (Corrigan, J.) (severing counts pursuant to Rule 14

  because “the government did not allege that the events forming the [severed] counts were part of

  the larger conspiracy and its arguments as to why the entirety of evidence about the [severed]

  counts would be necessary to ‘tell the story’ of the other charges [we]re unconvincing”).




                                                      2
  124872516.1

Case 0:21-cr-60020-WPD Document 158 Entered on FLSD Docket 03/10/2021 Page 3 of 4




                                           IV. Argument

           Counts 34 and 35 charge bank fraud offenses. The gravamen of these offenses is the

  allegation that two PPP loan applications were submitted by J. Markovich to banks and that Mr.

  Markovich wrongly failed to tell the banks that the application entities (i.e. Compass Detox and

  WAR) were engaged in violations of law. These applications were one-time events, submitted on

  April 24, 2020.

           The rest of the Government’s indictment describes an array of alleged criminal offenses

  that have nothing to do with bank fraud and nothing to do with the PPP loans themselves. Most

  of the other charges are continuing offenses spanning more than three and a half years. Count 1’s

  healthcare fraud allegations have nothing to do with PPP loans. Nor do the substantive Counts 2-

  9. Count 10’s kickback allegations likewise do not relate to the PPP loans. Nor do the substantive

  counts that follow. The same is true as to Count 24-33 and the money-laundering charges.

           Counts 34 and 35 are simply not of the same or similar character or part of a common plan

  or based on the same transaction as all the other counts of the Indictment. Respectfully, these two

  counts were misjoined under Rule 8.

           In addition, inclusion of these counts with the other counts of the Indictment is unfairly

  prejudicial under Rule 14. A “mini-trial” about PPP loans and the loan process is unnecessary and

  improper, and will elongate an already complicated case. Other PPP fraud cases are receiving

  publicity and will be going to trial over the next many months. The idea that the Paycheck

  Protection Program was somehow taken advantage of by J. Markovich simply does not belong in

  this healthcare fraud prosecution. These counts should be severed.




                                                   3
  124872516.1

Case 0:21-cr-60020-WPD Document 158 Entered on FLSD Docket 03/10/2021 Page 4 of 4




                                          V.   Conclusion

           For the foregoing reasons, Counts 34 and 35 of the Indictment should be severed.

                                   RULE 88.9 CERTIFICATION

           Undersigned understands that Government counsel opposes this motion.

                                               Respectfully submitted,

  Dated: March 10, 2021                        s/ Michael Pasano
                                               Michael S. Pasano (FBN 475947)
                                               E-mail: mpasano@carltonfields.com
                                               CARLTON FIELDS
                                               700 N.W. 1st Avenue, Suite 41200
                                               Miami, Florida 33136-4118
                                               Telephone: (305) 530-0050
                                               Attorney for Defendant Jonathan Markovich




                                                   4
  124872516.1

File and source

File

158.pdf

Size

33,376 bytes

SHA-256

90c903a2ccf5452f81f47026c385a8664efc56069ca9be19883261e930133bb4

Our copy

158.pdf