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

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.

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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

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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.

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II. Defendant’s Efforts to Undermine M.Z.’s Credibility Are a Red Herring, and Merely
Underscore the Breadth of the Defendant’s Misconduct.

Defendant makes much of the introduction of a text message from M.Z. to the Defendant

stating that “I never gave you permission to bill Medicare” (referring to Bond Hearing Exhibit D).

Defendant urges that this statement is contradicted by other text messages that were not introduced

at the Bond Hearing, and thus suggests M.Z.’s credibility is in dispute. Defendant’s argument

misses the point in three ways. First, the Government introduced the text messages for the sole

purpose of showing that the Defendant and M.Z. had communicated about the substance of the

underlying investigation while the Defendant was on bond. For purposes of that inquiry, the truth

of the content of the messages is entirely irrelevant; the point is merely that the communications

took place. Defendant attempts to confuse the issue by creating a red herring by suggesting the

Government was trying to show that M.Z. had not offered the Defendant permission to bill

Medicare. Yet the Government was not alleging, nor had M.Z. ever alleged to the Government,

that M.Z. “never gave [the Defendant] permission to bill Medicare.” Indeed, other text messages

contained within the same exhibit—Bond Hearing Exhibit D— make clear M.Z. and the Defendant

did have an agreement to allow the Defendant to submit claims to Medicare using M.Z.’s Medicare

number. (See Exhibit D at 3) (“Do not bill Medicare until I have a chance to review the problem

with the case Medicare had issues with and review other cases.”) That agreement with physicians

is the very basis of the health care fraud conspiracy charged in the criminal complaint against the

Defendant. (D.E. 1).

Second, Defendant cannot allege that M.Z. was attempting to hide any of his

communications from the Defendant (who has always had access to the entire text message

exchange) or from the Government, because M.Z. made the entirety of his communications with

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the Defendant available to the Government, which produced the communications to Defendant as

soon as the communications had been processed. (See D.E. 33 n.4) (acknowledging receipt of the

text messages). Third, and more importantly, that there were additional messages between the

Defendant and M.Z. discussing the submission of claims to Medicare merely underscore the

breadth of the Defendant’s non-compliance with the conditions of his release.

Finally, the Defendant’s allegations concerning a young woman pejoratively described in

quotation marks as M.Z.’s girlfriend (D.E. 33 at 4) have no relevance to the issue before the Court.

Defendant did not even raise this alleged issue at the bond hearing, but instead raises the issue for

the first time in his Response. The Government is troubled by the Defendant’s efforts to malign

a young woman, who is not a party to this case, by publicly publishing her photo on the Court’s

docket. Even if the events outlined in the Response were relevant to this proceeding, those facts

could have been outlined without the inclusion of the young woman’s photo. The Government

accordingly moves to strike the photo.

III. There Is Probable Cause to Believe the Defendant Obstructed Justice While on Bond.

A. Defendant’s Purported Explanations for His Contacts with Witnesses M.Z.


and A.G. Are Not Plausible.

The Defendant asserts that his communications with A.G. were born out of good intentions:

to ensure that she received her paycheck. As set forth in the criminal complaint, the Defendant

received $53,800 in Paycheck Protection Program loans intended to assist with providing wages

to employees, including A.G., on or about May 22, 2020. (D.E. 1 ¶ 56). The Defendant received

an additional $149,000 in Economic Injury Disaster Loan funds on or about June 17, 2020. (D.E.

1 ¶ 64). Yet as Agent Walsh testified A.G. had informed law enforcement, she and other

employees of Defendant’s chiropractic clinic had nonetheless experienced issues with their salary.

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Although Defendant had clearly had the funds to pay A.G. since at least May 22, it was not until

July 30—the day after Defendant learned A.G. was a witness to his criminal investigation—that

he offered to pay her (See Bond Hearing Exhibit E) (“Got your check”), and even then the

Defendant used the salary as an opportunity to pressure A.G. to meet in person (Bond Hearing

Exhibit E) (“Can’t wait need you today let Guillermo pick you up super important for both of us”),

on a day when the office was closed (Tr. 49:14-21), such that there would be no witnesses to their

conversation.

Following these messages, which the Defendant stipulated that he sent from his 305

Number, Defendant switched to communicating through a “burner” phone using the 786 Number.

T-Mobile subscriber records obtained by the Government and produced to the Defendant on

September 9, 2020 (attached hereto as Exhibit A)—before the filing of the Defendant’s response—

flatly contradict the theory that the 786 Number belonged to a “third party” who communicated

on the Defendant’s behalf. (Tellingly, Defendant has yet to identify the purported “third party”).

To the contrary, the subscriber records confirm that the 786 Number is a pre-paid phone plan with

no subscriber information, or what is commonly referred to as a “burner.”

Defendant’s Response attempts to suggest some non-nefarious justifications for his contact

with the witnesses. In doing so, Defendant ignores that if he truly had need to contact the

witnesses to arrange, he was permitted to do so through counsel. Instead, the Defendant

deliberately (1) chose not to contact the witnesses through counsel; (2) chose not to inform

Probation about his contact with witnesses; and (3) on several occasions chose to contact witnesses

through a burner phone tells the Court. These are not the actions of a man with good intentions.

Instead, his intention as clearly to influence the witnesses to the criminal investigation. That

intention was clear to the witnesses themselves, who described the Defendant’s intentions to

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“pressure,” “blackmail,” and “bribe” them. E.g. Tr. 18:3-5; 29:24; 30:3-4; 36:13-14; 49:15-17;

see also D.E. 27-1.

B. The Probation Officer’s Testimony Does Not Undermine the Conclusion that
the Defendant Obstructed Justice.

Defendant inaccurately characterizes the testimony of Probation Officer Jimmy Navarro.

Officer Navarro offered his opinion that, if the contacts from the 786 Number had been sent by a

“friend” rather than the Defendant himself, it would not be a violation of the no-contact provision

of Nobbe’s bond for Nobbe to have made indirect contact with the witnesses, noting that “in some

bonds the Judge will include directly or indirect contact with the witnesses. Meaning a third party

got involved.” Tr. 62:2-11. As an initial matter, the language of Nobbe’s conditions of release,

which prohibited any contact with witnesses “except through counsel” plainly prohibited the

Defendant from contacting witnesses through friends. It is within the Court’s purview, and not

Probation’s, to interpret and enforce that condition. In any event, the question is entirely

academic, because the evidence clearly showed that the Defendant himself was the one who

initiated the contacts with the witnesses. The Defendant stipulated to this fact with respect to

contacts from the 305 Number; and the evidence clearly established the Defendant as the person

behind the 786 Number. See, e.g. Tr. at 17:1-3 (describing M.Z.’s “one hundred percent”

certainty that he had been called by the Defendant from the 786 Number on August 15); Tr. at

35:15-19 (describing A.G.’s statement that text messages from the 786 Number (Bond Hearing

Exhibit F) were from the Defendant because “[t]here were some things in the text messages that

he mentioned she said only he would know.”)

More to the point, Defendant ignores Officer Navarro’s testimony that even indirect contact

would have been a violation of the conditions of bond that prohibit obstruction of justice, and that

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Officer Navarro believed the Defendant had violated that bond condition here. Tr. 62:25-63:7 (A.

It is a violation of the law whether he intimidated or attempted to obstruct… It would be a violation

of the bond. Q. Do you believe that bond conditions have been violated here? A. Yes, I do.”).

C. Even If Defendant’s Explanations for His Contacts with Witnesses Were


Plausible, the Government Has Nonetheless Established Probable Cause.

Moreover, even viewing the Defendant’s misconduct in a light most favorable to the

Defendant, revocation is still the appropriate remedy. See United States v. Gilley, 771 F. Supp.

2d 1301, 1306-07 (M.D. Ala. 2011). The court in Gilley addressed the very issue before the Court,

in which the Government alleges that the Defendant’s contacts with a witness were obstructive,

and the Defendant urges there was a non-obstructive justification for his contacts. As the court

correctly concluded in Gilley:

“[P]robable cause under section 3148(b)(1)(A) requires only that the facts available
to the judicial officer warrant a [person] of reasonable caution in the belief that the
defendant has committed a crime while on bail.” United States v. Gotti, 794 F.2d
773, 777 (2d Cir. 1986) . . . This court, therefore, cannot, and does not, say that the
government’s allegations against Gilley are true or correct. Instead, as said, the
issue is whether there is probable cause, and probable cause there is. A reasonable
person could find the government’s reading (that Gilley was attempting to influence
Massey) is probable, especially when read against the backdrop of the other
evidence presented to support the allegation of a deal-to-lie between Gilley and
Massey. . . . Admittedly, Gilley’s reading of the evidence against him as merely an
effort to update Massey about a debt owed is also plausible. But that is not the
issue. The issue is whether the government's version is probable, and the fact that
Gilley’s version is plausible does not mean that the government’s version is not
probable.

Id. The most logical reading of the Defendant’s communications with M.Z. and A.G. clearly

shows the Defendant’s efforts to influence the witnesses by paying them, demanding in-person

meetings, and instructing witnesses to say they had done “nothing wrong,” all while Defendant

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was under clear instructions not to contact M.Z. or A.G. There is ample evidence that the

Defendant sought to obstruct justice while on bond.

CONCLUSION

The conditions of release imposed by the magistrate do not adequately take into

consideration the egregious nature of the Defendant’s numerous violations of the conditions of his

release or his effort to tamper with witnesses and obstruct justice; nor do they address that the bulk

of Defendant’s communications were executed through a “burner” phone that the Defendant has

not surrendered to his attorney. The Defendant has shown, repeatedly, that he believes himself to

be above the Court’s orders. For the foregoing reasons, the United States of America respectfully

requests that the Court issue an order revoking the Defendant’s release.

Respectfully submitted,

ARIANA FAJARDO ORSHAN


UNITED STATES ATTORNEY

DANIEL KAHN, ACTING CHIEF


U.S. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION, FRAUD SECTION

By: s/ Sara M. Clingan


Sara M. Clingan
Trial Attorney
FL Special Bar No. A5502508
U.S. Department of Justice
Criminal Division, Fraud Section
1400 New York Avenue, N.W.
Washington, D.C. 20005
Phone: (202) 880-2232
sara.clingan@usdoj.gov

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CERTIFICATION OF SERVICE

I HEREBY CERTIFY that, on September 15, 2020 I electronically filed the foregoing

document onto the Court’s CM/ECF system.

s/ Sara M. Clingan
Trial Attorney
U.S. Department of Justice

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Case 1:20-mj-03236-JB Document 34-1 Entered on FLSD Docket 09/14/2020 Page 2 of 5

Information Provided To:

Agency: Attorney/Other
Requestor: JOSEPH WALSH
Agent Address: JOSEPH WALSH
Billing City, State, Zip: MIAMI LAKES, FL 33016Ͳ0000
Provided On: August 25, 2020 Request Submission Response

This is in response to the Subpoena, FGJͲ19Ͳ03 (MIA), dated August 24, 2020, which was served upon TͲMobile US, Inc. You
have requested Information for the subscriber associated with MSISDN: 786

Subscriber Details:
Subscriber Name
Subscriber Address
Subscriber Status Deactivated
Subscriber Name Effective Date 05/21/2020

Account Details:
Brand Datablaze
Activation Date 05/21/2020
Termination Date 06/03/2020
Account Name
Account No
Account Effective Date 05/21/2020
Account Expiration Date 06/03/2020

Device Details:
IMSI
MSISDN Expiration Date 06/03/2020
MSISDN Disconnect Reason
MSISDN No 786
MSISDN Status Deactivated
MSISDN Market
MSISDN Name
SIM
IMEI
Begin Service Date 05/21/2020

Billing Details:
Bill Name
Bill Birth Date
Bill SSN
Bill Cycle
Bill Address
Company Name
Rate Plan
Rate Plan Desc
Contact 1
Contact 2
Coupon
Last Refilled

Ported Details:
Ported Carrier
Case 1:20-mj-03236-JB Document 34-1 Entered on FLSD Docket 09/14/2020 Page 3 of 5
Case 1:20-mj-03236-JB Document 34-1 Entered on FLSD Docket 09/14/2020 Page 4 of 5

Information Provided To:

Agency: Attorney/Other
Requestor: JOSEPH WALSH
Agent Address: JOSEPH WALSH
Billing City, State, Zip: MIAMI LAKES, FL 33016Ͳ0000
Provided On: August 25, 2020

This is in response to the Subpoena, FGJͲ19Ͳ03 (MIA), dated August 24, 2020, which was
have requested Information for the subscriber associated with MSISDN: 786

Subscriber Details:
Subscriber Name IN PREPAID none CUSTOMER
Subscriber Address none, none, none,
Subscriber Status Active
Subscriber Name Effective Date 11/22/2017

Account Details:
Brand TMUS(M4G)
Activation Date 11/22/2017
Termination Date
Account Name IN PREPAID none CUSTOMER
Account No 90380607
Account Effective Date 11/22/2017
Account Expiration Date

Device Details:
IMSI 310260658018251
MSISDN Expiration Date
MSISDN Disconnect Reason
MSISDN No 786
MSISDN Status Active
MSISDN Market Miami, FL
MSISDN Name IN PREPAID none CUSTOMER
SIM
IMEI 352019072357803
Begin Service Date 11/22/2017

Billing Details:
Bill Name IN PREPAID none CUSTOMER
Bill Birth Date 06/06/1964
Bill SSN
Bill Cycle
Bill Address none, none, none,
Company Name
Rate Plan 283
Rate Plan Desc $30 Tourist 1000 Min UL Txt &
Case 1:20-mj-03236-JB Document 34-1 Entered on FLSD Docket 09/14/2020 Page 5 of 5

Contact 1
Contact 2
Coupon
Last Refilled 11/22/2017

Ported Details:
Ported Carrier