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Case 1:12-mj-00141-JFA Document 26

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UNITED STATES DISTRICT COURT for the Eastern District of Virginia (Alexandria Division) UNITED STATES OF AMERICA Plaintiff, v. HAMADA MAKARITA Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 1:12MJ141

DEFENDANTS RESPONSE TO MOTION FOR REVOCATION OF ORDER SETTING CONDITIONS OF RELEASE FILED BY THE UNITED STATES Defendant Hamada R. Makarita (Dr. Makarita), by counsel, hereby respectfully responds to the Motion For Revocation of Order Setting Conditions of Release filed by The United States pursuant to 18 U.S.C. 3145(a). The allegations in the Governments motion are addressed below paragraph by paragraph, and by supporting affidavit and exhibits. We would emphasize to the Court that Dr. Makarita is entitled to prepare a defense, which certainly includes the right to investigate. The Government has no monopoly on the investigation of cases or the interviewing of witnesses. Defense efforts to interview witnesses are neither obstruction nor intimidation. Moreover, Dr. Makarita, even based on the Government submission, has not been doing investigative work or making contacts since his arrest and appearance of counsel to represent him, with the possible exception of the issue regarding his smart phone which is addressed below. Thus, virtually all of the Governments factual submissions were known to the Government at the time of Dr. Makaritas release without objection from the Government and before counsel entered the case.

Case 1:12-mj-00141-JFA Document 26

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Also, with regard to the Governments argument of flight risk, all of the information set forth in the Governments submission was known to the Government on April 10, 2012, when Magistrate Judge John Anderson granted, over the Governments opposition, Defendants motion to travel to Toronto to receive a professional award that Defendant has been working to achieve for over ten years. Response to Government Allegations 1. Defendant admits that this Court has jurisdiction to hear the instant motion. Defendant denies that there is a serious risk of flight as alleged, or that there is a risk of attempted obstruction of justice or intimidation of witnesses as alleged. Defendant denies that evidence supports detention for obstruction of justice and intimidation of witnesses. Defendant denies that evidence supports detention based on a high risk of flight to Egypt. 2. Defendant admits that the Government did not seek detention at the time of his arrest, and that he was released on conditions that included relinquishment of his passport and DEA license and a prohibition on writing prescriptions. Defendant admits that the conditions of release were subsequently amended to allow him to write certain prescriptions for antibiotics and to allow him to retrieve his passport for travel to Canada from April 27 to April 29, 2012. 3. Defendant denies that he has contacted any witness or discussed the instant case with any person to obstruct, attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. Defendant admits that he has discussed the case with his current and former patients as he has worked to prepare his defense to the charges against him. Defendant admits that the

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Special Assistant United States Attorney assigned to his case sent a notice to his counsel warning Defendant not to discuss the case with his patients or witnesses. Defendant admits that his counsel contacted counsel for the United States and asked the United States how he could refrain from discussing the case with witnesses if he did not know who the witnesses are. Defendant admits that the Special United States Attorney responded that he should not discuss the case with anyone. A copy of the email exchange between counsel is attached hereto, marked Exhibit A, and is made a part hereof. 4. Defendant admits that he fired his former office manager, K.D., in April 2010, and that he turned over evidence of her misconduct (including embezzlement over a number of years) to an investigator from Fairfax County, Virginia, and subsequently to Agent Joseph Parker of the FBI. Defendant denies that he deliberately called K.D. and hung up the phone at the times alleged. Moreover, all but one of the alleged phone calls were made prior to Defendants knowledge that he was under investigation. Regardless, if calls to K.D. came from Defendants phone, the only explanation Defendant would have is that the number was accidently dialed. Defendant keeps his cell phone in the pocket of his trousers, and K.D.s number is one that has been dialed frequently by him over many years, since she was his office manager, his most trusted employee, and the Administrator of his 401(K) plan. Accidental dialing is a common occurrence when one carries a cell phone in ones pocket, and if answered the person called will hear the rustle of fabric against the phones microphone, and any other sound the phone picks up. Defendant admits that last year, prior to any knowledge or suspicion he was under investigation, upon

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learning that K.D. was working for another dentist, he attempted to contact that dentist and warn him of the risk he was taking having K.D. in his employ. 5. Defendant denies that in early April 2012 that he intimidated his current employee, M.A., or threatened her in any way. Defendant denies that he has made any statements to any patients, in the presence of M.A. or any other person, that constituted obstruction of justice or a threat to obstruct justice, or threatened to injure or intimidate any prospective witness. Defendant affirmatively states that all statements that he has made to his employees, patients, and friends have encouraged cooperation with Government investigators and encouraged them to tell the truth. Defendant admits that he has asked questions of his patients and employees as he has attempted to prepare his defense to the charges against him. Defendant denies that he told M.A. that she would go to jail if she did not speak to the defense investigator. Defendant admits that he asked his employee, M.A., to speak to the defense investigator, Michele Cross, and states that M.A. voluntarily spoke to Ms Cross in private without compulsion by him of any kind. Copies of Ms Crosss interviews with M.A. are attached hereto, marked Exhibit B, and and made a part hereof. 6. Defendant admits that in an effort to prepare his defense to the charges against him he has spoken to employees and to patients about prescriptions that were written. Defendant denies that any of these conversations involved obstruction of justice or threats to injure or intimidate the persons to whom Defendant spoke. Many of the discussions that Defendant had with patients and employees were in response to contact made by them as they leaned of Defendants arrest through the media. Defendant admits that he talked to a former girlfriend about the case, but denies that

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he threatened to blackmail her as alleged. The dispute with the former girlfriend involved her procrastination in getting her personal belongings out of Defendants home. Defendant told her that if she did not come and get her personal items, he would drop them off at her parents home where she was living at the time. After Defendants arrest, the former girlfriend called Defendant and asked about explicit videos that they had taken and was worried about those videos getting into other hands. To the best of his recollection, Defendant has not spoken to the former girl friend since that call shortly after his arrest. She did tell him that FBI Agent Parker had left a card on her parents door. Defendant told her to please call him and just tell the truth. 7. Defendant denies that any of his conduct, before or since his arrest, has involved actions that were intimidating current and former employees and girlfriends. He denies that his contacts with patients discussing prescriptions were improper in any way. Defendant denies that any of his actions, before or since his arrest constitute grounds for revocation of bond and detention in violation of 18 U.S.C. 3142(f)(2)(b). Defendant denies that he is a flight risk because he was born in Egypt. Defendant came to the United States as a child and became a naturalized citizen. He attended school in Northern Virginia, and does not read or write Arabic. He has lived in Virginia almost all of his life and has no desire to live in Egypt or anywhere else besides his home. Defendant denies telling K.D. of any plan to go to Egypt if he got into trouble.

Defendant affirmatively states that a review of Agent Parkers affidavit clearly shows

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that the instant motion is almost completely based on the allegations of K.D., Defendants former office manager. Defendant believes that statements made by K.D. are unworthy of belief. Defendants investigator, Michele Cross, has prepared an affidavit in support of this Response. Ms Crosss affidavit further supports Defendants belief that statements by K.D. are unworthy of belief, which affidavit is attached hereto, marked Exhibit C, and made a part hereof. WHEREFORE, for the foregoing reasons, Defendant Hamada Makarita respectfully prays this Court deny the Motion for Revocation of Order Setting Conditions of Release, and for any further and additional relief as this Court sees fit and just.

Respectfully submitted, HAMADA MAKARITA By Counsel /s/ James R. Tate James R. Tate (VSB 6241) Douglas E. Bywater (VSB 9137) Allan B. Robertson (VSB 79725) TATE, BYWATER & FULLER, PLC 2740 Chain Bridge Road Vienna, Virginia 22181-5378 Phone: (703) 938-5100 Fax: (703) 255-1097 jtate@tatebywater.com arobertson@tatebywater.com CERTIFICATE OF SERVICE I hereby certify that on this the 19th day of April 2012 I have caused a true and accurate copy of the foregoing to be sent pursuant to Fed. R. Crim. Pro. 49 via the Courts CM/ECF system, which will send electronic notice of such filing to: Mazen Basrawi, Esquire Assistant United States Attorney Justin W. Williams United States Attorneys Building 2100 Jamieson Avenue Alexandria, VA 22314 /s/ James R. Tate
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