Amended Motion Withhdraw Guilty Plea 04-15-2009

8/14/2019 Amended Motion Withhdraw Guilty Plea 04-15-2009

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2.

Before Defendant pleaded guilty, he was insistent about his innocence and

proceeding to trial. As discussed in the previously filed motion, Defendant hired many

reputable lawyers to review any and all pertinent rules and regulations as it would apply

to his business. Defendant received numerous opinion letters from these lawyers

regarding his business. Prior to trial, the Government filed a motion in limine to prevent

Defendant from raising his defenses of advice of counsel and good faith because he was

charged with inter alia general intent crimes. [Doc. 217]. According to Defendant, his

lawyers, Edward T.M. Garland and Donald F. Samuel, both wonderful lawyers, advised

him that his affirmative defenses could not be raised as a defense to Counts Two through

Four, or Counts Forty-Nine through Fifty-One because they were general intent crimes.

But his lawyers did believe he could raise these defenses for the remaining counts of the

indictment which included conspiracy and money laundering. Therefore, based on his

attorneys opinion, Defendant believed he had no choice but to plead guilty since his

defense was being removed. This advice from his defense lawyers was erroneous and

caused Defendant to enter a guilty plea. Defendant, under the law, would have been

allowed to raise advice of counsel to all counts in the indictment.

3.

Defendant moves to vacate his plea based on the grounds of ineffective assistance

of counsel. To establish a claim of ineffective assistance of counsel, Defendant must

show: (1) his counsel's performance fell below an objective standard of reasonable

professional assistance; and (2) there is a reasonable probability that the outcome would

Case 1:08-cr-00082-CC Document 22 Filed 04/15/2009 Page 2 of 8


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have been different but for his lawyer's unprofessional errors. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984).

4.

In indictment 1:06-CR-337, Defendant Stoufflet was charged in Count One with

Conspiracy.1 Furthermore, in Counts Two-Four, Defendant was charged with a violation

of 21 U.S.C. 841(a)(1), 841(b)(2) and CFR Section 1306.04 and 18 U.S.C. 2 (Aiding

and Abetting), and Aiding and Abetting the Misbranding of Drugs in Counts Forty-Nine

through Fifty-One. These are the counts where an advice of counsel defense was in

dispute, as stated above. Commonly, an advice of counsel defense cannot be raised if one

is indicted for a general intent crime. Since the Government believed that the charges,

other than the money laundering counts, were general intent crimes, they moved this

Honorable Court to deny the defense to right to raise an affirmative defense of advice of

counsel. However, the Government is mistaken because conspiracy is a specific intent

crime, and Defendant was charged as an aider and abettor in all the other counts.

Furthermore, Defense Counsel misinterpreted the same issue overlooking the fact that if

Defendant was indicted as an aider and abettor, this increases the mens rea, and he could

raise an advice of counsel defense.

5.

The Government sought to prove that Defendant was not the actual distributor,

but was an aider and abettor since he did not personally conduct any acts of distribution.

1The original indictment is 1:06-CR-337. When Defendant agreed to enter a guilty plea, the Government

filed an information under case number 1;08-CR-00082. However, Defendant was advised to plead guilty

based on the indictment not the information that was subsequently filed.



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Without dispute, the doctors wrote the prescriptions and sent them to the pharmacies to

be distributed and Defendant himself did not actually distribute the drugs unlike a typical

drug distribution case. If the case proceeded to trial, this Honorable Court would have

been required by law to instruct the jury on the principles of aiding and abetting pursuant

to 18 U.S.C. 2. According to this section of the United States Code, a person can only

be found culpable as an aider and abettor if the defendant willfully causes an act to be

done. Willfully is defined as an act committed voluntarily and purposely, with the

specific intent to do something the law forbids; that is with bad purpose either to disobey

or disregard the law. See Pattern Instruction 9.1 of the Eleventh Circuit Pattern Jury

Instructions (Crim. 2003).

6.

Besides the pattern instructions, our law, in the Eleventh Circuit, holds that to

prove an accused guilty beyond a reasonable doubt as an aider and abettor, even when the

substantive crime is a general intent one, requires a showing of specific intent. See United

States v. Baytank, 932 F. 2d 599 (5th Cir. 1991)(For a general intent crime, when one is

charged as an aider or abettor, there is a required showing of specific intent); See also,

United States v. Lindell, 881 F. 2d. 1313 (5th

Cir. 1989) citing United States v. Payne,

750 F. 2d 844, 860 (11th Cir. 1985)(government had to show defendant willfully

associated with the criminal venture, participated in it as something he wished to bring

about, and sought through his actions to make it a success). Therefore, Defendant

Stoufflet had every right to rely on the defenses of advice of counsel and good faith. Any

advice to the contrary was erroneous and rises to the level of ineffective assistance of

counsel.



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7.

Regardless of whether these charges are specific or general intent crimes,

Defendant should nevertheless be permitted to raise these defenses. Mr. Stoufflet spent an

exorbitant amount of money for lawyers who advised him on the legalities of his

company; he spent an exorbitant amount of time attempting to remain in compliance with

all the local laws.2

For the Court to have refused his right to raise this defense, would

absolutely eradicate the need for lawyers to assist in advising companies about the

legalities of their business.

8.

As noted above, and in many other pleadings, this is far from a straightforward

drug distribution case. A myriad of laws, regulations, including but not limited to medical

board rules, were reviewed in order to determine the legality of this business model. By

the fact that the government chose to indict Defendant vis--vis a hodgepodge of federal

laws, is proof enough that this was not a normal drug case. The governments recitation

of case law about drug conspiracies to bar the defendant from raising his sole defense is

completely distinguishable.

9.

What cannot be overlooked is the fact that this Honorable Court denied the

Governments motion in limine to remove the advice of counsel defense. Although Mr.

2Until this year, there were no federal laws on point dealing with these issues.



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Stoufflet already pleaded guilty, this Honorable Court cited appropriate law in finding

that these charges were specific intent crimes allowing any defendant to raise reliance on

counsel as a defense. [Doc. # 225] It is unclear as to the Courts later reasoning to deny

Dr. Andre Smith the right to raise a good-faith defense. [Doc. # 233].

10.

It cannot be overlooked that recently in the United District Court for the Southern

District of Florida, in United States v. Hernandez, Case No. 08-60027, a case factually on

all fours with this one, including the indictment, the Honorable Judge Zloch instructed

the jury on an advice of counsel defense. After a mistrial was declared, for jury

misconduct, the United States Attorneys Office decided to dismiss all charges against

every defendant in the case including vacating prior guilty pleas because there was an

advice of counsel defense. [See Governments Motion to Dismiss Indictment with

Prejudice Doc. 1214 in US. v. Hernandez]. For the United States Department of Justice to

file a dismissal of charges against one set of defendants based on an advice of counsel

defense, yet prosecute another set of defendants with an analogous advice of counsel

defense is Kafkaesque. Why are similarly situated defendants being treated dissimilarly

by the same government agency? Whether or not Mr. Stoufflet has a meritorious defense

is not an issue for this Honorable Court to decide. It is an issue for twelve impartial

citizens living in the Northern District. He should be granted the right to withdraw his

guilty plea and proceed to trial.



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WHEREFORE, Defendant requests that this Honorable Court grant said motion.

Respectfully submitted,

s/Lawrence J. Zimmermans/Lawrence J. Zimmermans/Lawrence J. Zimmermans/Lawrence J. ZimmermanLawrence J. ZimmermanAttorney for Defendant

SBN: 785198

1800 Peachtree Street, NW

Suite 300

Atlanta, GA 30309(404) 351-3000



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CERTIFICATE OF SERVICE

I hereby certify that I have on this day served a true and correct copy of the within

and foregoing AMENDED MOTION TO WITHDRAW GUILTY PLEA OF

DEFENDANT CHRISTOPHER STOUFFLETupon counsel using the ECF system

which will automatically send e-mail notification of such filing to opposing counsels, Mr.

Randy Chartash and Mr. Larry Sommerfeld.

This the 15th

day of April, 2009.

s/Lawrence J. Zimmermans/Lawrence J. Zimmermans/Lawrence J. Zimmermans/Lawrence J. ZimmermanLawrence J. ZimmermanGeorgia Bar No.785198

Suite 300

1800 Peachtree StreetAtlanta, GA 30309

(404) 351-3000


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Amended Motion Withhdraw Guilty Plea 04-15-2009