Case 1:18-cr-20989-RKA Document 526 Entered on FLSD Docket 04/30/2021 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 18-20989-CR-ALTMAN/Goodman
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`Plaintiff,
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`UNITED STATES OF AMERICA,
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`v.
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`JOHNNY GROBMAN, et al.,
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`Defendant.
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` /
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`ORDER
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`We’ve rejected Johnny Grobman’s requests for pre-sentencing release twice already. Back a
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`third time, Grobman adds several conditions that (he believes) will ensure his appearance and the
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`safety of the community. But the Court isn’t persuaded. For the reasons set out below, the Defendant’s
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`Corrected Motion to Reconsider Order Revoking Bond (the “Motion”) [ECF No. 449] is DENIED.1
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`THE FACTS
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`On February 6, 2020, following a twelve-day trial, a federal jury in this District convicted
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`Grobman on all thirteen counts of the indictment against him. See Verdict [ECF No. 344]. The charges
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`included wire fraud, money laundering, theft of pre-retail medical products, and smuggling. The
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`evidence at trial showed that Grobman and three co-conspirators orchestrated a multimillion-dollar
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`fraud, in which they purchased FDA-regulated products from American manufacturers at substantially
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`1 The Motion is now ripe for adjudication. See United States’s Response in Opposition to Defendant’s
`Motion for Reconsideration (“Response”) [ECF No. 456]; Johnny Grobman’s Reply to Government’s
`Response to Defendant’s Motion for Reconsideration (“Reply”) [ECF No. 457]. Grobman also filed
`a Supplement to the Motion (“Supplement”) [ECF No. 459], and the Government filed a Response
`to the Defendant’s Supplement (“Government’s Supplement Response”) [ECF No. 460]. Grobman
`then filed another Response in Support of the Motion (“Second Response”) [ECF No. 463] and another
`Supplement to the Motion for Reconsideration of Bond (“Second Supplement”) [ECF No. 482].
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`discounted prices by misrepresenting that the products would be shipped overseas to Suriname,
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`when—in fact—they were selling the products in the United States. After the verdict, the Court
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`remanded Grobman to the custody of the Miami Federal Detention Center (“FDC Miami”) pending
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`his sentencing, which is currently scheduled for August 26 and 27, 2021. See Paperless Minute Entries
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`[ECF Nos. 336, 513].
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`This Court has—on two previous occasions—denied Grobman’s requests for pre-sentencing
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`release. First, after he was convicted at trial, Grobman moved the Court to let him out on bond. In
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`support, counsel argued that Grobman’s family circumstances and his compliance with the conditions
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`of his bond demonstrated that he wasn’t a flight risk. In rejecting counsel’s position, the Court
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`explained that “things are different once you get convicted at trial. Because until that point, hope
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`springs eternal in human beings. And now after that point, I think it’s understandable that things may
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`have changed.” See United States v. Grobman, 460 F. Supp. 3d 1331, 1334 (S.D. Fla. 2020).
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`Second, on March 20, 2020, while in federal custody, Grobman filed a renewed motion for
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`bond, in which he proposed to sprinkle his home confinement with several new conditions and
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`claimed that the COVID-19 pandemic justified his release. See Motion for Bond [ECF No. 382]. Again,
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`this Court rejected his plea. See Grobman, 460 F. Supp. 3d at 1337. As the Court explained:
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`Grobman has every incentive to flee: he is only forty-six years old, and he is facing a
`potential sentence of life in prison. Grobman also has all the resources he would need
`to effectuate his escape: he has significant foreign ties; he is extraordinarily wealthy; he
`has access to wealthy friends and family who have already agreed to put up millions of
`dollars for his release; and he has demonstrated a callous willingness—over many
`years—to defraud others and to disregard the law when doing so was in his own best
`interests. To give this Defendant, in these circumstances, a bond—because he has inactive
`lupus (of the skin) or because he may one day become diabetic—would be to allow
`(almost) every non-violent defendant in the country out onto the streets. This the
`Court will not do.
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`Id. at 1340.
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`THE MOTION
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`Now, Grobman has moved a third time for release. In this Motion, Grobman offers three new
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`2
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`arguments—all unavailing.
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`First, Grobman contends that the COVID-19 pandemic has worsened since the Court last
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`took up his request. Because of “deteriorating” conditions at FDC Miami, he says, he “has essentially
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`been on a twenty-four-hour lockdown”; the “air conditioning has frequently malfunctioned”; he has
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`“lost over twenty-five pounds”; and he’s been unable to have “in-person meetings” with his lawyers
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`to prepare for sentencing. Motion at 3–5. Notably, a few days after he filed this Motion, Grobman
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`tested positive for COVID-19. See generally Supplement. Fortunately, Bureau of Prisons (“BOP”)
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`medical records indicate that he was “asymptomatic throughout his 14 day quarantine.” Sealed BOP
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`Medical Records [ECF No. 462], Ex. A at 7. Although Grobman quibbles with the assertion that he
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`was entirely asymptomatic—he says he suffered “bodily pains and intestinal disturbance”—he concedes
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`that he didn’t have a cough or fever. See Second Response at 2. And he never suggests that he endured
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`any of COVID-19’s more serious complications—e.g., breathing trouble, chest pain, blood clotting—
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`or that his life was ever in jeopardy. See generally id.; see also BOP Medical Records. Indeed, by all
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`accounts, Grobman is fully recovered “and, after being quarantined, is presently not contagious.”
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`Second Supplement at 1.
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`Second, Grobman offers some additional release conditions. In his first motion, Grobman had
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`suggested the following bond terms: (1) $3.5 million in bonds signed by Grobman, his family, and his
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`friends; (2) the surrender of his and his immediate family’s passports; and (3) home confinement with
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`electronic monitoring. See Magistrate Order [ECF No. 397] at 16–18. Acknowledging now that his
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`opening bid was too low, Grobman proposes to have two Rabbis monitor him via daily video
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`conferences—one of whom is prepared to execute a personal surety bond. See Motion at 7–8. He also
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`wants to hire two former DEA agents who will provide around-the-clock surveillance. See Supplement
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`at 2.
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`Third, Grobman argues that his risk of flight should be balanced against the risk of death or
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`3
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`serious harm that his incarceration presents. See Motion at 8. He notes, moreover, that he has sold the
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`yacht he could have used to escape and that counsel is holding the yacht’s proceeds in trust. Id. Finally,
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`he points out, his house stands just across the street from a police station—which, Grobman supposes,
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`means that he “can literally be observed by standing on his front steps multiple times a day if required.”
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`Id. at 9.
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`I.
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`The Standard for Reconsideration
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`THE LAW
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`“Although the Federal Rules of Criminal Procedure do not specifically authorize motions for
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`reconsideration, both the Supreme Court and [the Eleventh Circuit] have permitted parties to file such
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`motions in criminal cases.” Serrano v. United States, 411 F. App’x 253, 255 (11th Cir. 2011).2 “In ruling
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`on a motion for reconsideration in a criminal case, federal district courts apply civil standards and
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`exercise substantial discretion.” United States v. Marcelina Orozco, 2020 WL 3963719, at *1 (S.D. Fla. July
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`13, 2020). As in civil cases, “there are three major grounds which justify reconsideration: (1) an
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`intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct
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`clear error or prevent manifest injustice.” United States v. Razz, 387 F. Supp. 3d 1397, 1402 (S.D. Fla.
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`2019) (cleaned up) (quoting Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D.
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`Fla. 2002)).
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`“A motion for reconsideration cannot be used ‘to relitigate old matters, raise argument or
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`present evidence that could have been raised prior to the entry of judgment.’” Richardson v. Johnson, 598
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`2 See also United States v. Phillips, 597 F.3d 1190, 1199 (11th Cir. 2010) (“The government correctly
`points out that the Supreme Court and this Court have permitted motions for reconsideration in
`criminal cases notwithstanding the fact that the Federal Rules of Criminal Procedure do not expressly
`provide for them . . . .”); United States v. Sabooni, 2014 WL 4385446, at *1 (S.D. Fla. Sept. 4, 2014)
`(reviewing a motion to reconsider in a criminal case); United States v. Gallo, 2014 WL 1230717, at *3
`(S.D. Fla. Mar. 25, 2014) (reviewing a motion to reconsider an order for pretrial detention); United
`States v. Edler, 2013 WL 4543695, at *1 (S.D. Fla. Aug. 27, 2013) (Rosenbaum, J.) (same).
`4
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`F.3d 734, 740 (11th Cir. 2010) (quoting Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th
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`Cir. 2005)). The Eleventh Circuit has cautioned that “permit[ting] the unlimited renewal or
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`reconsideration of fully decided motions would needlessly tie up judicial resources and seriously delay
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`the final disposition of cases.” United States v. Gupta, 363 F.3d 1169, 1174 (11th Cir. 2004). For this
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`reason, courts have recognized that “[r]econsideration is an ‘extraordinary remedy’ that should be
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`‘employed sparingly.’” Marcelina Orozco, 2020 WL 3963719, at *1 (quoting Burger King Corp., 181 F.
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`Supp. 2d at 1370).
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`II.
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`The Standard for Release
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`This Court has previously laid out the standards that govern the release of a defendant pending
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`sentencing. See Grobman, 460 F. Supp. 3d at 1336–37. As we explained, 18 U.S.C. § 3143(a) sets forth
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`two tests under which a defendant awaiting sentencing may be released. The first provides that a
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`defendant “shall” be detained unless the defendant shows “by clear and convincing evidence that [he]
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`is not likely to flee or pose a danger to the safety of any other person.” 18 U.S.C. § 3143(a)(1).
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`The second—a more stringent standard for defendants convicted of certain serious
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`offenses—provides that a defendant “shall” be detained unless he shows not only (1) “by clear and
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`convincing evidence that [he] is not likely to flee or pose a danger to any other person,” but also (2)
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`either (a) that “there is a substantial likelihood that a motion for acquittal or new trial will be granted”
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`or (b) that the Government has recommended that “no sentence of imprisonment be imposed.” 18
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`U.S.C. § 3143(a)(2). Although this second prong imposes a demanding standard, which few defendants
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`can meet, § 3145(c) also offers an “exceptional-reasons safety valve.” Under this safety valve, a
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`defendant who satisfies the first prong (flee and danger) can bypass the second prong (acquittal, new
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`trial, or no imprisonment) by “clearly” showing that “there are exceptional reasons why such person’s
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`detention would not be appropriate.” 18 U.S.C. § 3145(c).
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`5
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`Under either § 3143(a) or the safety valve (§ 3145(c)), Grobman bears the burden of proving—
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`by clear and convincing evidence—that he is not likely to flee or pose a danger to the community. See
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`Grobman, 460 F. Supp. 3d at 1336; see also United States v. Harris, 2020 WL 1503444, at *5 (D.D.C. Mar.
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`27, 2020) (“[E]ven when a court concludes that [the exceptional-reasons safety valve] is available, the
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`Court must still determine whether there is clear and convincing evidence that the person is not a risk
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`of flight and will not pose a danger to the community.”).3
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`ANALYSIS
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`For four reasons, Grobman hasn’t carried his burden here. First, he hasn’t relied on any
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`intervening change in controlling law. See generally Motion. Second, as we explain below, he’s marshalled
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`only one new (and insignificant) fact. Third, he hasn’t argued that our original decision was clearly
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`erroneous or that reconsideration is necessary to “prevent manifest injustice”; nor, relatedly, has he
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`shown any new or extraordinary circumstances that might warrant reconsideration. To the contrary,
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`since he’s developed COVID-19 antibodies, he’s now inarguably safer than he was months ago, when
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`he first filed the Motion. Fourth, and most importantly, Grobman still has failed to show, by clear and
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`convincing evidence, that he isn’t a flight risk.
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`We start with COVID-19 and Grobman’s health. In our prior ruling, we found that Grobman
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`had “not shown that his [medical] condition [was] at such ‘an acute level warranting his release.’”
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`Grobman, 460 F. Supp. 3d at 1339 (quoting United States v. Esformes, 16-cr-20549-RNS, at 3 (S.D. Fla.
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`Apr. 9, 2020), ECF No. 1491). That hasn’t changed. In fact, since filing the Motion, he contracted
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`3 See also United States v. Gerrans, 2020 WL 1865420, at *1 (N.D. Cal. Apr. 14, 2020) (“The Court notes,
`even if there were ‘exceptional reasons,’ release under Section 3145(c) would not be proper unless the
`judicial officer finds by clear and convincing evidence that the defendant is not likely to flee . . . .”);
`United States v. McDuffie, 2020 WL 1659879, at *2 (S.D.N.Y. Apr. 3, 2020) (explaining that, under §
`3145(c), a “bail motion can be granted only if there is (1) clear and convincing evidence that [the
`defendant] is not a flight risk or a danger to others and (2) an exceptional reason why his detention is
`inappropriate”).
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`COVID-19 and recovered without medical complication. See generally BOP Medical Records; see also
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`Second Supplement at 2 (“Mr. Grobman now reports to the Court that he is deemed to have
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`recove[re]d from the disease[.]”).
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`Recognizing that this recovery might undermine his argument, Grobman points out that he
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`could be reinfected. Id. But, as our sister courts have repeatedly recognized, this risk is (very) small.
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`See, e.g., United States v. Bullock, 2021 WL 1550424, at *2 (S.D.N.Y. Apr. 20, 2021) (“Mr. Bullock himself
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`tested positive for the virus in June 2020 and has apparently recovered, ‘presumably reducing—if not
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`eliminating—his risk of contracting the disease going forward.’” (quoting United States v. Ayon, 2020
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`WL 7401620, at *1 (S.D.N.Y. Dec. 17, 2020))); see also United States v. Crawford, 2021 WL 1535369, at
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`*1 (W.D. Va. Apr. 19, 2021) (“Currently available data indicates that while it is possible for a person
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`who has already had COVID-19 to become reinfected, reinfection is rare.”). More than that, though,
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`conditions around the country and within the federal prison system have improved since July of 2020.
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`See, e.g., United States v. Haas, 2021 WL 1546432, at *4 (E.D. Ky. Apr. 20, 2021) (“Impressive
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`vaccination campaigns across the country are contributing to our slow return to some form of
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`normalcy,” and “states are administering about three million doses per day on average in the United
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`States”). What’s more, the BOP has (by last count) administered 151,619 vaccines to its inmates. See
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`COVID-19 Vaccine Implementation, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/
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`(last visited Apr. 29, 2021). In other words, if Grobman hasn’t received his shot already—a factor that
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`would further moot his position—he’s set to get one very soon. The situation is therefore not
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`“deteriorating,” as Grobman suggests, because inmates are far safer today than they were last summer.
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`In short, if COVID-19 didn’t justify Grobman’s release last year, it cannot do so now.
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`In either event, Grobman again fails to show that he isn’t a flight risk—reason enough to deny
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`the Motion. As we’ve explained, under §§ 3143(a) and 3145(c), the Court “may not release a defendant
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`unless that defendant has shown that he is not a flight risk.” Grobman, 460 F. Supp. 3d at 1339. In
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`weighing this question (for a third time), we don’t need to consider Grobman’s new release proposals—
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`i.e., that two Rabbis would monitor him through videoconferences, that one of those Rabbis would
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`sign a surety bond, and that two former DEA agents would provide around-the-clock surveillance.
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`Nor need we scrutinize his home’s location vis-à-vis the police station. These are all things that
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`Grobman could have offered as conditions in his first two requests for bond—a reality that dooms
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`his efforts to renegotiate his release on a motion for reconsideration. See Richardson, 598 F.3d at 740
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`(“A motion for reconsideration cannot be used ‘to relitigate old matters, raise argument or present
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`evidence that could have been raised prior to the entry of judgment.’” (quoting Michael Linet, Inc., 408
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`F.3d at 763)). To suggest otherwise would be to encourage defendants to litigate by iteration—to
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`propose, in other words, the lowest possible bond and then to slowly up the ante, motion by renewed
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`motion, until the Court’s concerns are mollified.
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`But let’s give the Defendant the benefit of every doubt and consider his new proposals anyway.
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`And let’s add to the mix the sale of his yacht, which is really the only new evidence he’s marshalled
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`here. None of this alters the result. Grobman still faces a life sentence; he was (and remains) convicted
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`of a scheme premised on deception; he still has significant foreign bank accounts; much of his family
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`(also with means) continues to live abroad; and he still has tremendous wealth in the United States
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`(minus one boat).4 See Grobman, 460 F. Supp. 3d at 1337–39. Grobman, in other words, still has the
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`means and the motive to flee, and he has already shown a propensity for deceiving others and flouting
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`the law.
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`The proposals, in any case, are mere ornamentation—the kinds of things people do and say
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`4 As far as we can tell, Grobman still lives in a $10 million waterfront home and still has $6 million in
`his Bank of America and UBS accounts. See Grobman, 460 F. Supp. 3d at 1338; see generally Motion (not
`suggesting any change to his financial situation). Thus, while the sale of his yacht may be a “new” fact
`for purposes of a motion for reconsideration, it’s hardly material. After all, given his resources,
`Grobman could easily buy (or have someone else buy) a smaller and less conspicuous vessel with
`which to make his escape.
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`8
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`to make us feel safer, even though we aren’t. Grobman, remember, orchestrated a complex scheme to
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`defraud sophisticated companies. As part of that scheme, he and his co-conspirators engineered false
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`documents and filled giant cargo containers with an amount of sheet rock that mirrored (almost
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`precisely) the weight of the baby food the containers were supposed to be carrying—all in a brazen
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`(and, for years, successful) effort to evade the authorities. We don’t think it’s too much to suggest that
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`this same man could figure out how to get away from two (retired) DEA agents he himself would be
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`paying. See Supplement at 2. As James Madison once said, the “power over the purse may . . . be
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`regarded as the most complete and effectual weapon[.]” THE FEDERALIST NO. 58. We have even less
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`faith in the fortuitous presence of the police station—not because police officers aren’t good at
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`surveillance, but because we recognize that police officers are plenty busy keeping their communities
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`safe; they don’t have time to engage in the pro bono surveillance of a federal prisoner who happens to
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`live across the street.
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`As for the Rabbis, one of them “has known Johnny Grobman and his family for over nine
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`years,” see Motion at 8—a relationship that, it goes without saying, didn’t deter Grobman from
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`propagating a multi-million-dollar fraud. The same is true of one of the DEA agents: Grobman was
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`employing Manuel Recio as a private investigator while he was committing these crimes. See Government’s
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`Supplement Response at 4 (testimony of a former victim company employee who met with
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`“Manny”—i.e., Manuel Recio, one of the two former DEA agents at issue here (quoting Feb. 4, 2020
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`Tr. Trans. at 221:9–15)).5
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`Nor does adding a former agent and a Rabbi alter this analysis. We haven’t the power to direct
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`the surveillance activities of agents-cum-investigators, and we couldn’t hold them in contempt for
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`letting Grobman escape (purposely or otherwise). See United States v. Botero, 604 F. Supp. 1028, 1035
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`5 Grobman never rebuts this proposition. See generally Second Response; Second Supplement.
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`(S.D. Fla. 1985) (“[I]t is not entirely clear what authority and what duty a private guard would have to
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`prevent [defendant’s] flight. Certainly, this Court would be reluctant to hold such a guard in contempt
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`if it appeared that he was unable to physically prevent [defendant’s] flight.”).
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`Ultimately, we reiterate that Grobman’s “fundamental lack of respect for the rule of law”
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`undermines his claimed willingness to abide by whatever bond conditions the Court might impose. See
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`United States v. Norman, 2009 WL 464078, at *3 (S.D. Fla. Feb. 24, 2009). As we’ve said, he Grobman
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`a powerful incentive to abscond; he has the means to get away; and he has people on the other side
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`who would be happy to take him in.
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`***
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`Having carefully reviewed the Motion, the record, and the governing law, the Court hereby
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`ORDERS and ADJUDGES that the Motion [ECF No. 449] is DENIED.
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`DONE AND ORDERED in Fort Lauderdale, Florida, this 29th day of April 2021.
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`__________________________________
`ROY K. ALTMAN
`UNITED STATES DISTRICT JUDGE
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`cc: counsel of record
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