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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 1:20-MJ-03236

UNITED STATES OF AMERICA v. DENNIS NOBBE, Defendant. /

GOVERNMENT’S REPLY TO DEFENDANT’S RESPONSE TO THE APPEAL OF ORDER DENYING REVOCATION OF BOND

The United States of America, by and through the undersigned attorney, files this reply to the Defendant’s Response to the Government’s Appeal of the Order Denying Revocation of Bond.1 (D.E. 33) Defendant’s appeal doubles down on the very error that the Government appealed: that the Government was permitted to introduce, and the Court was permitted to consider, hearsay evidence at the Bond Hearing on August 27, 2020. That evidence clearly establishes probable cause to believe that the Defendant sought to tamper with witnesses and obstruct the Government’s investigation in this case, while released on bond. Because of the severity of the Defendant’s misconduct while on release, and because there are no conditions of release that would prevent similar misconduct or that the Defendant is likely to respect, revocation

1 Defendant’s Response is curiously styled as an “initial” response, and asserts that Defendant had not received the transcript of the Bond Hearing as of the time of filing. While it is not clear why the Defendant did not request a copy of the transcript, the undersigned notes that she emailed the transcript to the Defendant twice prior to the filing of his motion: once at 2:06 pm on September 10, 2020, and again at 12:41 on September 11, 2020. Regardless, the Defendant was present through the entire Bond hearing and is aware of the arguments and evidence presented.

Case 1:20-mj-03236-JB Document 34 Entered on FLSD Docket 09/14/2020 Page 1 of 10

2 of release is the only appropriate remedy.

ARGUMENT I.

Defendant’s Response Doubles Down on the Evidentiary Errors Underlying the Magistrate Judge’s Denial of Revocation of Bond.

As the Government explained in its Appeal (D.E. 27), the Magistrate Court erred in refusing to consider the testimony of Special Agent Wand. As Wand explained to the Court, witnesses M.Z. and A.G. described that they felt “pressured,” “blackmailed” and “manipulated” by the Defendant through the Defendant’s contacts with them while the Defendant was on bond. For example, Agent Walsh testified concerning witness M.Z. that the Defendant had called M.Z., while the Defendant was on bond, and offered M.Z. to continue working as the Defendant’s medical director (Tr. at 17:1-12) and that M.Z. understood this offer to be “a bribe” to continue in “the fraud scheme.” (Tr. at 17:1-18:19). Similarly, Agent Walsh testified concerning witness A.G.: A. [A.G.] stated to the Government that this was a meeting that, I guess, Dennis Nobbe wanted to meet with [A.G.] in person on a day that the office wasn’t opened. She felt, she stated to us, pressured to show up. Q. Did [A.G.] use the term (Spanish) [

chantaje

]? A. Yes. With regard to him saying I got your check

, she felt the word was blackmailed. Like, I got your money, look, show up.

Q. Did [A.G.] tell you that she felt that Dr. Nobbe was trying to influence her? A. Yes.

She said pressured. She said manipulated. She said blackmailed.

Tr. at 29:17-30:4 (emphasis added). Notably, A.G. made these statements concerning text messages she received from the 305 Number (and which are in evidence as Bond Hearing Exhibit E),

which the Defendant stipulates that he sent

. Notably, more egregious messages followed from


3 a 786 Number sent from a burner phone, including an instruction that the Defendant “asks that you did nothing wrong” with respect to the criminal investigation. (Bond Hearing Exhibit F). Defendant objected at the hearing, and again in his Response, that statements by witnesses “were not co-conspirator statements, and therefore not an exception to the hearsay rule.” (D.E. 33 at 6). To be clear, communications between the Defendant and M.Z. or A.G. would be co-conspirator statements subject to Federal Rule of Evidence 801(d)(2)(E). Additionally, as the Government explained in its Appeal (D.E. 27), the “rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information” at bond hearings.

See

18 U.S.C. § 3142(f)(2)(B). Indeed, at bond revocation hearings, the defendant “is not entitled to a ‘mini trial’” and the Government may “proceed by proffer alone.”

United States v. Hardy

, No. 15-60136-CR, 2016 U.S. Dist. LEXIS 115826, at *6-9 (S.D. Fla. Aug. 23, 2016). Defendant identifies no reason why the testimony of Agent Walsh—a federal agent, testifying under oath and subject to cross examination by the Defendant—lacked credibility. Agent Walsh testified concerning interviews he had personally conducted of the two witnesses, M.Z. and A.G. Those interviews had taken place on August 26 and August 27, 2020, and thus were fresh in the Agent’s memory when he testified about those interviews on the evening of August 27, 2020. Complete reports of those interviews were produced to the Defendant; Defendant’s Response does not identify any facts in those reports that were omitted from Agent Walsh’s testimony, or any basis for his assertion that Agent Walsh’s testimony “cherry-picked” facts from those interviews. Accordingly, the Magistrate Court erred in refusing to consider this evidence, and the denial of the Government’s motion to revoke bond was in error.
