Вы находитесь на странице: 1из 9
Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 1:20- MJ-03236 UNITED STATES OF AMERICA. v DENNIS NOBBE, Defendant. ‘0 GOVERMENT’S APPEAL RE: MOTION TO REV DEFENDANT'S INITIAL RESPONSI DENIAL OF THE GOVERNMENT’ Defendant, Dennis Nobbe, per the Court's amended order, responds as follows: INTRODUCTION Dr. Nobbe violated the Court’s order by having direct communication with two prospective government witnesses. But it was not for the corrupt purpose alleged by the government. Subsequently the Court imposed strict conditions to prevent a reoccurrence. Itis difficult to file an accurate response without the transcript. STATEMENT OF PERTIN! T FACTS 1, After his arrest, Dr. Nobbe was released on a personal surety bond with special conditions that included no direct contact with certain enumerated persons. Two of those persons were Ana Garcia, who had worked for Dr. Nobbe for over 20 years, and Dr. Mark Zager, who diagnosed/treated patients associated with Dr. Nobbe’s clinic. 2. On August 24, 2020, the government filed a motion to revoke Dr. Nobbe’s bond, (DE 5). The motion alleged: (1) that on August 15, 2020, Dr. Nobbe had a telephone call with Dr. ‘Zager. and (2) that on August 20, 2020, Dr. Nobbe attempted call Dr. Zager. Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 2 of 8 3. By the time of the hearing on August 27, 2020, the government expanded its motion to include an allegation that Dr. Nobbe sent text messages to his long-time employee Garcia. 4. At the August 27" hearing, the Court received government exhibits A-F as follows: (a) the names of the individuals that Dr. Nobbe was not supposed to have direct contact with, (b) Dr. Zager's cell phone’s call detail record, (¢) a sereenshot from Dr. Zager’s cell phone, (4) four pages of screenshots from Dr. Zager’s cell phone, (e) two pages of screenshots from Garcia's cell phone, and (f) two pages of screenshots from Garcia’s cell phone. 5. Tostreamline the hearing, the defense agreed: (1) that Dr. Nobbe was not supposed to contact Dr. Zager and Garcia, (2) that using a third party’s cell phone. Dr. Nobbe spoke to Dr. Zager on August 15" (3) that exhibits C and D were screenshots of some, but not all the relevant text messages between Dr. Zager and Dr. Nobbe, and (4) that exhibits E and F were screenshots of text messages sent to Garcia, 6. The government also introduced testimony from the investigating agent and the officer supervising Dr. Nobbe's pretrial release. 7. The defense objected to the investigating agent testifying about his recollection of unswor, unrecorded conversations with Dr. Zager and Garcia. Notwithstanding, the defense’s objection, the Court heard the substance of the investigating agent’s recollection of his conversations with Dr. Zager and Garcia, 8 The defense did not stipulate to and contested the fact that Dr. Nobbe attempted to call Dr. Zager, using the third party’s cell phone, on August 20" 9, Jimmy Navarro, the officer supervising Dr. Nobbe’s pretrial release, testified the special conditions of his release did not prohibit indirect contact with Dr. Zager or Garcia (emphasis added) Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 3 of 8 10, The government introduced text messages (Gov. Ex. D) between Dr. Nobbe and Dr. Zager. Dr. Zager texted Dr. Nobbe, “I never gave you permission to bill medicare.” This was the last text message from Dr. Zager to Dr. Nobbe that the government introduced at the hearing. (emphasis added) a) ‘The Magistrate Judge asked defense counsel to recommend modifications to Dr. Nobbe’s pretrial release status. Defense counsel suggested the conditions that were imposed except for increasing Dr. Nobbe’s personal surety bond for $200,000 to $350,000. Defense counsel recommended: (1) that he be placed on house arrest with a GPS monitor, (2) that he surrender his cell phone, (3) that all cell phone usage be prohibited, (4) that his telephonic communication be via an old fashion landline installed in his house, and (5) that he supply a list telephone numbers idemtifying who he would be calling. 12. In support of its appeal, the government supplied the Court with an affidavit of Dr. Zager. (Gov. Ex. DK. 27-1). lavit which is attached hereto,' to rebut Dr. 13. Likewise, Dr. Nobbe submits an affi Zager’s affidavit. 14. Regarding the August 15" telephone conversation, Dr. Nobbe states: I did speak to Dr. Zager on the telephone on August 15, 2020. 1 initially had the third party talk to Dr. Zager to ask if he was going to see the patients scheduled for Wednesday, August 19, 2020. There was one patient that the physician assistant had seen for a frozen shoulder. Before August 15th, the patient had asked several times to meet with Dr. Zager. When Dr. Zager became verbally abusive toward the third party, 1 got on the call to see if he was coming in. I was trying to avoid a potential issue of abandoning patients. There was no discussion about him continuing as medical director. 1 Dr. Nobbe lives in Miami and defense counsel is quarantined in Boca Raton, Therefore, there is. logistical problem. Via Zoom Dr. Nobbe was witnessed signing his affidavit and it will be mailed to counsel to notarize and file with the Court 3 Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 4 of 8 Dr. Nobbe attempted to indirectly, which was not prohibited, ask Dr. Zager if he was coming in four days later to see patients. Dr. said no. There was no discussion about him continuing as a medical director. 1 's inqui ‘The morning after his arrest, in response to Gark about her paycheck, Dr. Nobbe texted messaged her that her check (paycheck) was available. 16. The August 14"* text message to Garcia was an indirect communication sent by the third party. Thus, according to Mr. Navarro, it was not a prohibited contact, 17, Remember government's Ex. D, ends with Dr. Zager texting Dr. Nobbe, “I never gave you permission to bill Medicare.” This was not true, On August 4" at 5:10 p.m., Dr. Zager ”? This earlier texted Dr. Nobbe, “Dennis I was very agreeable to allow you to bill Medicare . text directly contradicts the text the government introduced. It clearly demonstrates that Dr. Zager’s credibility was an issue. 18. Dr, Zager’s credibility is further called into question, such that his live testimony, subject to cross examination, was necessary. Dr. Zager had a young “girlfriend™” he alleged took company funds. Afier Dr. Nobbe’s arrest Dr. Zager texted him wanting his payeheck. Dr. Zager’s paycheck was written from his own bank account, But his checks were gone. Before Dr. Nobbe's arrest, two checks, written the same day, were made payable to Juan A. Alvarez for $2500 and $2000, Dr. Zager texted and talked to Dr. Nobbe about this. Dr. Zager told Dr. Nobbe that he thought his girlfriend was responsible, because she also attempted to cash checks from his personal account. Plus, he said she knew where he kept checkbooks in his house. Dr. Zager was unable to contact her to confront her, because uncharacteristically, she refused to contact him. 2 A copy of this text is attached. The text may also be found in the government's discovery received on or about September 9, 2020. See 20-MJ-03236-000029929 > Her picture is attached. Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 5 of 8 19, In response to Dr. Zager's demand for his $4000 paycheck (he could not write his ‘own check because he had no checks) on August 5, 2020, Dr. Nobbe had a blank check from Dr. Zager’s account delivered to him for him to sign to pay himself. LEGAL AR M Dr. Nobbe admitted he violated the Court's order by having direct communication with two prospective government witnesses. The Court considered the government's documentary exhibits, including text messages. But, the Dr. Nobbe objected that the agent's recollection of unswom, unrecorded conversations with the two witnesses, Dr. Zager and Garcia, because it did not tell the complete story ‘To buttress its appeal, the government now submits an affidavit from Dr. Zager (DE 27-1). In rebuttal, Dr. Nobbe submits an affidavit, including exhibits, that explains that his contact with these witnesses was not for the corrupt purpose alleged by the government. Ana Gai First, the contact with Garcia, His 20-year employee was worried about her paycheck. The text on July 30" (Gov. Ex. E) merely told her that her regular paycheck, which she had called about, was available, The text on August 14" was an indirect communication, which according to the government's own witness, was not prohibited. Therefore, the August 14" text message to Garcia t with Garcia did not violate the pretrial order regarding cor The substance of the August 14" text message (Gov, Ex. F), an non-prohibited indirect communication, relayed by a third party is: (1) that Dr. Nobbe cannot have direct contact with Garcia, (2) that the clerical tasks Garcia performed were not illegal (Does the government assert Garcia is an unindicted coconspirator?), (3) that Garcia will be paid for any past hours that she Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 6 of 8 worked, (4) that Garcia should file for unemployment, (5) that if unemployment benefits are insufficient, she can do clerical work at the office but cannot have contact with Dr, Nobbe (the pretrial order permitted him to continue to see patients and he suggested that his 20-year employee could continue to provide clerical services regarding those patients but could not have contact with the patients or Dr. Nobbe), (6) that Dr. Nobbe apologized for upending her employment, (7) that Dr. Nobbe feels he will be vindicated, and (8) that Dr. Nobbe wished her well and asked her to pray for him. The text message on August 15" (Gov. Ex. F) was a non-prohibited indirect communication after Dr. Nobbe met with Mr. Navarro, Garcia was transmitted Mr. Navarro’s name, telephone number, and told that Mr. Navarro will confirm they cannot have direct contact. Dr. Zager Dr. Zager is an alleged coconspirator substantially the same as Paul Wand* and Stuart Lewis.® Days prior to the hearing, the agent conducted an unsworn, unrecorded interview with Dr. Zayer. The government sought to “cherry pick” portions of that interview and introduce them through the agent. Apparently, the government's “deal” with Dr. Zager was not completed Therefore, he was unavailable to testify at the hearing Dr. Zager’s unsworn, unrecorded statements to the agent were not co-conspirator statements, and therefore not an exception to the hearsay rule. His statements were sel serving statements made while trying to negotiate a “deal” with the government. Therefore, his eredibility was a central issue that should have been subject to cross examination. * United States v. Paul Wand, ¢: District of Florida. 5 United States v. Stuart Lewis, case no.1:20-ct-20188-DPG, U.S. District Court, Southern District of Florida, se no.1:20-cr-20189-KMM. U.S. District Court. Southern Case 1:20-mj-03236-JB Document 33. Entered on FLSD Docket 09/11/2020 Page 7 of 8 Contemporaneous with trying to cut a “deal” with the govemment, Dr. Zaget sent Dr. Nobbe a self-serving text message - “I never gave you permission to bill Medicare” ~ that was introduced as Gov. Ex. D. But this was not true, because earlier he texted Dr. Nobbe, “Dennis I Was very agreeable to allow you to bill Medicare...” ‘Atthe time of Dr. Zager’s unsworn, unrecorded statements to the agent, he was still dealing ‘with the fact that his “girlfriend” participated in taking money from his office account, money the goverment claims was unlawfully eared. Had the government presented his live testimony atthe hearing, he would have been cross-examined about this Dr: Nobhe's affidavit addressed the August 15" telephone conversation, He initially had the third party talk to Dr. Zager to ask if he was going to see the patients scheduled for Wednesday, ‘August 19, 2020. There was one patient that the physician assistant had scen for a frozen shoulder. Before August 1th, the patient had asked several times to meet with Dr, Zager, When Dr. Zager be ime verbally abusive toward the third party, Dr. Nobbe asked if he was coming in. [was trying ‘0 avoid a potential issue of abandoning patients. There was no di continuing as medical director. CONCLUSION After finding that Dr. Nobbe violated the condition of his release prohibiting direct contact found that there were a combination of conditions with Dr. Zager and Garcia, the Court correctl of release that will ssure that he will not flee or pose a danger tothe safety of the community. He is currently on home confinement with a GPS monitor. His cell phone is in the custody of his Storey. He is prohibited fom owning, possessing, or using a cell phone. His telephonic communication is restricted to an old-fashioned landline in his apartment. He has agreed to provide alist identi ig the telephone numbers ttt he calls, Case 1:20-mj-03236-JB Document 33 Entered on FLSD Docket 09/11/2020 Page 8 of 8 Accordingly, the government's appeal should be denied. Dr. Nobbe should be permitted to remain released per the conditions imposed. CERTIFICATE OF I HEREBY CERTIFY that the government's counsel was sent a copy of this document via the e-filing portal as well as via email on September 11, 2020. 1H, DOHN WILLIAMS JR. Attomey for Defendant 633 SE 3" Avenue #202 Fort Lauderdale, FL 33301 990 N.W. 5" Street Boca Raton, FL 33486 444 W. Palmetto Park Road #D201 Boca Raton, FL 33432 Tel. (561) 929-5432 Main Number Tel. (954) 871-2409 Fort Lauderdale e-file pleadings - hdohn@outlook.com e-mail gen. comespondence — hdohn@outlook.com By: /s/: Harry Dohn Williams Jr Harry Dohn Williams Jr. 97:202¢Case 1:20-mj-03236-JB Document 33-1 Entérett oa P¥SD Docket 09/11/2020 Page 1 of 2 {no subject) 2020 918.21 PAL HDahn Willams