Jonathan Markovich’s Omnibus Reply in Support of His Motions to Dismiss, to Strike, and to Sever — United States v. Markovich (Dkt. 164, S.D. Fla.)

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Defendant Jonathan Markovich's omnibus reply in support of his motions to dismiss, to strike and to sever, filed March 25, 2021 in United States v. Jonathan Markovich, et al., Case No. 21-CR-60020-DIMITROULEAS/SNOW, in the U.S. District Court for the Southern District of Florida. The reply answers the government's oppositions to the motion to dismiss and/or strike (D.E. 157) and the motion to sever (D.E. 158). It argues that Rule 7(c) and due process require a plain statement of the essential facts, and that tracking the statutory language is not enough where the government has charged multiple individuals over several years. It also argues that judicial economy does not justify keeping Counts 34 and 35 joined and asks that they be severed. It is signed by attorney Michael S. Pasano.

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Case 0:21-cr-60020-WPD Document 164 Entered on FLSD Docket 03/25/2021 Page 1 of 3




                                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.
                                            /

                JONATHAN MARKOVICH’S OMNIBUS REPLY IN SUPPORT
                OF HIS MOTIONS TO DISMISS, TO STRIKE, AND TO SEVER

         Defendant Jonathan Markovich (“Mr. Markovich”) through counsel, responds as follows

  to the Government’s Oppositions to his motion to dismiss and/or strike (D.E. 157) and to his

  motion to sever (D.E. 158).

                                      I.   Motion to Dismiss

         Rule 7(c) Fed R. Crim. P, requires a “plain, concise and definite written statement of the

  essential facts constituting the offense charged”. Government counsel conflates this requirement

  into a general proposition that it is good enough to track the statutory language of the offenses

  charged. This might be true in a simple one defendant case where a singular act forms the basis

  of the charges. Here, however, the Government has chosen to bring an array of charges against

  multiple individuals covering a span of several years. The Government pleading seems to blame

  the Defendants for its charging choices. This is akin to the defense lawyer asking a prosecutor

  what the defendant did to be charged and the prosecution replying “ask your client”.

         Under Rule 7(c) and due process, this is simply not good enough. The prosecutors here

  point to a preliminary hearing that occurred while ignoring that when asked, the Federal Agent

Case 0:21-cr-60020-WPD Document 164 Entered on FLSD Docket 03/25/2021 Page 2 of 3




  could not identify evidence of specific misconduct by Mr. Markovich. The prosecutors also point

  to the mountain of discovery being produced in this case, as if the direction to “go fish” is adequate

  to satisfy Rule 7(c).

           Reading the Government opposition, it appears that Mr. Markovich’s crime is being “an

  owner and operator of Compass Detox and WAR”. The Government makes general allegations

  against Mr. Markovich but none that give him adequate notice of the specific acts with which he

  is charged in order for him to have the fair opportunity to defend himself.

           It is for these reasons that the Indictment as to Mr. Markovich is unduly vague and should

  be dismissed.

                                        II. Motion to Strike

           Rule 7(d) Fed R. Crim. P. allows a court to strike surplusage. The Government assumes

  that evidence regarding addiction guidelines and controlled substance rules will be admitted at

  trial. The Government assumes the same as to the inflated so-called loss amount set out in the

  Indictment. The Government’s position is premature. As it stands, both the introductory language

  of the Indictment and its reference to a specific alleged loss amount are surplusage that is

  prejudicial to Mr. Markovich and should be stricken.

                                        III. Motion to Sever

           The Government defends its choice to include separate and specific alleged acts by Mr.

  Markovich in applying for a loan under the Paycheck Protection Program in this Indictment, even

  though those acts are not similar to or connected to or arise out of the alleged schemes otherwise

  charged in the Indictment. This choice violates Rule 8(a), Fed R. Crim. P. as well as offends Rule

  14, Fed R. Crim. P. The Government points to judicial economy and its own ease of prosecution.

  These reasons are insufficient. Counts 34 and 35 should be severed.



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Case 0:21-cr-60020-WPD Document 164 Entered on FLSD Docket 03/25/2021 Page 3 of 3




                                     Respectfully submitted,

  Dated: March 25, 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




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