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8/2/2019 Hamada Makarita Defense Motion
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UNITED STATES DISTRICT COURT
for the Eastern District of Virginia
(Alexandria Division)
UNITED STATES OF AMERICA )
)Plaintiff, )
)
v. ) Case No. 1:12MJ141
)
HAMADA MAKARITA )
)
Defendant. )
)
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 phonewhich 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.
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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 withany 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 chargesagainst 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 offat 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 involvedactions 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 furthersupports 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 RoadVienna, Virginia 22181-5378
Phone: (703) 938-5100
Fax: (703) 255-1097
[email protected]@tatebywater.com
CERTIFICATE OF SERVICE
I hereby certify that on this the 19th day of April 2012 I have caused a true and accuratecopy of the foregoing to be sent pursuant to Fed. R. Crim. Pro. 49 via the Courts CM/ECFsystem, which will send electronic notice of such filing to:
Mazen Basrawi, Esquire
Assistant United States Attorney
Justin W. Williams United States Attorneys Building2100 Jamieson Avenue
Alexandria, VA 22314
/s/ James R. Tate
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