Prosecutorial Misconduct Issues 02.09.2010

8/14/2019 Prosecutorial Misconduct Issues 02.09.2010

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PROSECUTORIAL MISCONDUCT

1)DEGREE OF LAWYERS INVOLVEMENT

The government knows the extent lawyers were involved in offenses. Thelawyers did more than provide legal advice. The lawyers provided the legal

infrastructure for every transaction. The lawyers engaged in transactional work

that, by definition, involved far more than providing legal advice or making

legal arguments: they structured the alleged illegal transactions.

It is understood that the government has discretionary authority when

selecting persons for criminal sanctions. The record needs to reflect that the

lawyers met the qualifications necessary as criminal accomplices and are

culpable according to the law1

but immune from prosecution.

Devaluing the lawyers involvement to such a diminished capacityallowed the government a platform to exclude my advice of counsel

defense.

There is a vast amount of direct evidence of the lawyers involvement but the

government has fought to keep it out of Court and covered-up. I believe the

motive for the governments omissions of the lawyers can be directly linked to

their inability to prove beyond a reasonable doubt and sustain a convictionon the premise that crimes were being committed for a 2 year period under

the guidance and direction of many lawyers.

The government admitted during RECENT proceedings that I provided them

evidence of the lawyers involvement:

09/23/2009: SA Bob Kuykendall questioned by Stoufflet defense counsel

Zimmerman:

KUYKENDALL: Well, the truth, the focus of the truth was that, if I may

1See, e.g., MPC 2.06(3) (A person is an accomplice of another person in the commission of an offense if: (a) with

the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit

it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (iii) having a legal duty

to prevent the commission of the offense, fails to make proper effort to do so; or (b) his conduct is expressly

declared by law to establish his complicity.); N.Y. Penal Law 115 (substantive offense of criminal facilitation

when the actor believes that it is probable that his actions will aid the principal).


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paraphrase and I'll go back if you would like me to be more specific, but

because he showed us copies of documents related to the lawyers'

involvement, specifically primarily it was the contracts, the fact that the

lawyers helped write and rewrite and draft the contracts, his point was the

lawyers were therefore very intimately involved in the process, they hadknowledge, he hired the lawyers to help him do the right thing, et cetera.

A recent chain of events unveils the extent the lawyers were involved in my

business.

Excerpts from discussions with former defense counsel Zimmerman and

Samuel regarding the depths of the lawyers involvement is revealed:

10/24/2008: ZIMMERMAN TO STOUFFLET:2

I am not partof that crime as you well know.

In turn, I inform Mr. Samuel about Mr. Zimmermans withdrawal and discuss with

him the lawyers involvement in which he states:

10/26/2009: ATTORNEY DON SAMUEL STATED:

I agree with you that the "dangerou" or "red flags" letter may have

"been insufficient, as a matter of legal advice. Butit does show,

unequivocally, I think, that they knew exactly what your company didand continued to bill you every hour, knowing what you were doing. I

have always thought this was a very strong point on your side. After all,

if they thought what you were doing was flat-out illegal, they would not

be allowed to continue to bill you on an hourly basis, in the same way

that a lawyer cannot provide legal services to a heroin or cocaine

distribution business on an ongoing basis. The fact that they continued

to bill you shows that, at least to some extent, they viewed you as being

involved in a legitimate business, even if it was somewhat "dangerous"

(or whatever you want to call it).

10/27/2009: ATTORNEY DON SAMUEL STATED:

2Mr. Zimmerman separates himself from the other lawyers by his statement he was not part of that crimes.

These discussions he distances himself from the other lawyers and which directly result to Mr. Zimmermans

decision to withdraw as counsel.


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I understand your point yesterday that the lawyers were, for all

practical purposes in on itin the sense that they profitedfrom your

business, knowing exactly what you were doing.

Had the extent of the lawyers involvement been disclosed early on, theGovernment would not have had the ability to legitimately to assert the claims

in Governments Motion to Exclude Advice-of-Counsel [Doc. 217].

Thus, the government moves to exclude any evidence or argument

pertaining to a defense that defendants erroneously believed their

conduct was legal.

Thus, defendants' beliefs concerning the legality or the propriety of

internet prescribing of controlled substances is not a proper defense,and evidence of their good faiths beliefs, through the advice of

counsel, mistake of law, or any other rubric, is irrelevant to the

charges and should be excluded.

This importance of this issue is intensified because the Government position

asserted in Motion 217 is the trigger point in which the guilty plea is obtained.

These new statements regarding the lawyers involvement profoundly affect

the entire case. The lawyers involvement has been misrepresented and theCourt is unaware of the depths of their involvement and for that reason, and

therefore must be presented to the Court.

2)CONCEALED & SUPPRESSED EVIDENCE

(A) LEGAL INVOICESThese invoices provides a detailed account of the lawyers involvement.

They also demonstrate that the lawyers had full knowledge of my business

and knew exactly what I was doing every minute I conducted the business.

These invoices confirm that the lawyers played a significant role in the veryoffenses which I am being held accountable for.

Most importantly, these legal invoices and contracts provide direct

evidence that Stoufflet disclosed all issues with the lawyers and that they

had full knowledge of everything. This key material evidence unequivocally


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eliminates and disproves the governments case-in-chief Conspiracy

theory.

ELEVENTH CIRCUIT:

In determining whether the record is sufficient to demonstrate theexistence of a conspiracy, this Court considers: (1) whether a common goal

existed; (2) the nature of the underlying scheme; and (3) the overlap of

participants. Id. Separate transactions are not necessarily separate

conspiracies, so long as the conspirators act in concert to further a common

goal. United States v. Chandler, 388 F.3d 796, 811 (11th Cir. 2004) (citation

omitted).

(B)LEGAL CONTRACTS 3These agreements, drafted and consistently updated by the lawyers,defined the scope of the alleged criminal acts and provided the linkage

or nexus of the willing participants.

KEY ELEMENTS OF THE CONTRACTS

1) Reveals the participants and provides the linkage or nexus inthe alleged offenses. Therefore, the government need not

speculate who participated in the alleged crimes.

The governments failure to be forthcoming is evident in theindictment, as it fails to include clear and concise account of the

facts. The omission of mandatory essential elements amounts

to a fabricated story presented in favor of the government. This

version is presented, as a True Bill. Ironically, the omissions are

numerous, extremely significant in purpose and favorable to my

defense. Drafting an indictment by strategically selecting issues

favorable to the government and excluding key facts favorable to

the defendant is apparent.

3Legal Contracts provide direct evidence : To determine a defendants accountability for the conduct of others, a

district court must first determine the scope of the criminal activity the particular defendant agreed to jointly

undertake and then consider the conduct of others that was both in furtherance of, and reasonably foreseeable in

connection with, the criminal activity jointly undertaken by the defendant. Id. In determining the scope of the

criminal activity, the district court may consider any explicit agreement or implicit agreement fairly inferred from

the conduct of the defendant and others.


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In this case, these legal contracts furnish the participants who

participated in the acts the government has deemed illegal. The

governments decision to provided a version, void essential

participants falls short as factual.

2) Confirms licensed U.S. pharmacies distributed and dispensedthe controlled substances, contradicting the indictment. The

evidence and the facts prove pharmacies distributed and

dispensed the controlled substances. Interestingly, the

government makes no mention of pharmacies, avoiding the

pharmacies involvement at all times, incorrectly recasting the

distributing and dispensing ofthe controlled substances on

the the defendants (doctors and myself). At no time did the

doctors or myself, possess, distribute or dispense any controlledsubstances. The government is well aware of this fact and the

evidence shows the controlled substances were distributed

from the manufacture, to wholesaler, to the pharmacy who

fulfilled prescription and shipped the controlled substances to

the consumer. These entities are all licensed by the DOJ DEA and

it was everyones belief they were in compliance with the law.

To greater distort the facts; the government categorizes the

pharmacies as hearsay evidence. (see Bill of Particulars Doc.181)

The facts prove beyond any doubt the pharmacieswere part of

the same course of conduct or common scheme or plan who

aided, abetted, counseled, commanded, induced, procured, or

willfully caused in furtherance of the jointly undertaken criminal

activity

The pharmacies meet the qualifications necessary as criminalaccomplices and are culpable according to the law.

3) Set for the role of each participant and their responsibility.


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4) Provides the specific intent of the participant. (Specific intentand general intent becomes a critical issue in this case.)

The lawyers and the pharmacies are inextricably intertwined

in every transaction and necessary to complete the story. Thegovernments exclusions of these key participants cannot translate

into a factual basis needed to sustain a conviction.

(C)CONCEALED INDEPENDENT FINANCIAL INVESTIGATION : performed byForensic Accountant and former IRS Agent Ted Robertson found no wrongdoing4

(D)CONCEALED INDEPENDENT 3RD PARTY CPA FIRM:(Verner, CPA) Firm Structured and managed all of Stoufflet's financial and taxreporting. no evidence of any wrongdoing.

The government is not at liberty to conceal such critical evidence. A factual

basis cannot be formed by a depiction of events, less untangled participants.5

It was the governments decision to deviate from the rules by concealing this

key evidence and present this case minus these essential elements. This

decision has substantially unfairly prejudiced this case.

To date the Court is unaware of these critical facts and therefore it must

immediately be brought to the Courts attention..

3)FAILURE TO PROVIDE A FACTUAL BASIS6

Throughout the proceedings fails to mention the lawyers and the pharmacies

involvement. Their intentionally omission of necessary participants in the

allegations cannot form a factual basis.

4The government had multiple meetings with Roebrtson and my CPAs and found no wrongdoing. Robertson met

with William Bruton on (03/04/2004). Mr. Bruton and Jerry Culver; Financial Crimes Consultants met with CPAs

and uncovered no attempt to conceal or hide funds. (see invoices)59-27.750 Disclosing Factual Material to Defense (A) The attorney for the government should disclose to defense

counsel, reasonably in advance of the sentencing hearing, any factual material not reflected in the presentence

investigation report that he/she intends to bring to the attention of the court.6

UNITED STATES ATTORNEYS MANUAL Title 9 221 Sufficiency [Federal Rules Criminal Procedure Rule 7(c)(1),]

provides: The indictment or the information shall be a plain, concise and definite written statement of the

essential facts constituting the offense charged [E]very element of the offense intended to be charged, and

sufficiently apprises the defendant of what he must be prepared to meet, and, in the case any other proceedings

are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a

former acquittal or conviction.


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The Federal Rules of Criminal Procedure and the United States Attorneys

Manual (USAM) require a factual basis for the following:

1. INDICTMENT2. GUILTY PLEA

3. SENTENCING

The governments failure to provide a clear and concise account of the

events and the essential elements of the crimes do not meet the

standard to form a factual basis.7

4)DISMISSING THE PHARMACIES AS HEARSAY EVIDENCE

As explained above, the pharmacies were inextricably intertwined with thecharged offenses and necessary to complete the story due to their

involvement IN EVERY transaction.

According to the Federal Rule of Evidence the pharmacies do not qualify as

hearsay evidence.8

5)DISCOVERY VIOLATIONS

07/2007: The government requested early disclosure of my advice-of-

counsel defense materials. Following the advice of my attorneys, I waived theattorney-client-privilege and released all my information to the government.

7Fed. R. Crim. P. 7(c)(1)

The indictment and information must contain sufficient detail to adequately apprise the defendant of the nature

of the charges against him. The drafter must afford the defendant not only a document that contains all of the

elements of the offense, whether or not such elements appear in the statute, but one that is sufficiently descriptive

to permit the defendant to prepare a defense, and to invoke the double jeopardy provision of the Fifth Amendment,

if appropriate.

9-27.430 Selecting Plea Agreement Charges

(A)(2) That has an adequate factual basis; (B)(2) The attorney for the government should also bear in mind the

legal requirement that there be a factual basis for the charge or charges to which a guilty plea is entered

9-27.720 Establishing Factual Basis for Sentence

(A)(3) Make a factual presentation to the court (B)(2) Not only must the prosecutor be satisfied that the report is

factually accurate, he or she must also pay attention to the initial determination of the base offense level.8

1) Federal Rule of Evidence 801 (d) (2) (E) 11

(d) Statements which are not hearsay.--A statement is not hearsay if--2) Admission by party-opponent.--The

statement is offered against a party and is (E) a statement by a coconspirator of a party during the course and in

furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to

establish the declarant's authority under subdivision.


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For approximately four months, the government took advantage of this

unregulated process, analyzing all of my evidence. It was only after giving

themselves this unfair advantage that they declared my evidence was legally

unavailable to me.

6)COMPROMISING STOUFFLETS ABILI TY TO PRESENT EVIDENCETen days prior to trial, the government declared (see Doc. 217) Government

knows or should have known that I qualified to assert the advice-of-counsel

defense :

Prerequisites: Before taking any action with regard to the alleged offense:

(A) he fully disclosed all relevant facts to an independent attorney,

(B) whom he considered competent,

(C) the attorney offered a legal opinion or rendered legal advice on the

legality of a proposed transaction,(D) the defendant relied in good faith on this opinion or advice in

determining a course of action.

The facts confirm I met these necessary requirements allowing me to

legally assert an advice-of-counsel defense. But here again the failure to

disclose the depths of the lawyers involvement presents serious

consequences for me. Had the facts been disclosed that that the lawyers

not only provided advice but the lawyers structured and were engaged in

the facilitation of every transaction, my ability to assert this defense wouldnot have been an issue.

7)THE GOVERNMENTS USE OF STOUFFLETS EVIDENCE IN THEIR BEST INTEREST

After declaring the good-faith legal advice was irrelevant and not an

available defense to me in Doc. 217, the government conveniently utilized this

same evidence; legal contracts to their advantage during the trial of my co-

defendant, Dr. Smith.

(see numerous references to the legal contracts in trial transcripts Docs. 281-

2, doc. 281-3, doc. 281-4)

To date there has been no mention to the governments misuse of this

evidence and accepted as fundamentally fair.


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8)OFFENSES DOWNGRADED TO MISDEMEANORS

In 2008, the government conceded that the codefendant doctors had only

engaged in acts of a misdemeanor nature. Yet the government still insists that

I somehow engaged in federal drug dealing without the doctors and remains

persistent in seeking harsh punishment for me.

MARCH 4 2008: GUILTY PLEA PROCEEDINGS

STOUFFLETS ATTORNEY ED GARLAND STATED IN FEDERAL COURT:

That is, he is guiltyifhe aided in or agreed withpeople to have these drugs

sold over the Internet bydoctors doing these prescriptions.

[Document 12 Page 29 ]

The chart below is taken from the indictment and clearly demonstrates

governments classification of the crimes. The acts of the doctors andStoufflet are inextricably intertwined. Every Motion following the

indictment reveals the governments classification of Stoufflet and the

doctors culpable for violating the same crime. In fact, the indictment states

Stoufflet aided and abetted the doctors. The governments decision to

change legal theories at a later date in which Stoufflet crimes are felonies

and the doctors crimes are misdemeanors, presents new challenges.

An explanation of how Stoufflets aiding and abetting in misdemeanors

offenses constitute felonys offenses.

COUNTS 2 - 4

COUNT DEFENDANTS DATECONTROLLED SUBSTANCE

DISTRIBUTED AND DISPENSED

2

Christopher Stoufflet,

Troy Sobert,

Andre Smith, MD

09/16/2003

Received 30 doses of Phentermine

37.5 mg, prescribed by SMITH, M.D.

Andre D. smith, M.D. dispensed to

R.A.K. Atlanta, GA

3


Troy Sobert,Valdimr Andreis, MD 10/01/2003

Received 30 doses of Phentermine

37.5 mg, prescribed by SMITH, M.D.

Andre D. smith, M.D. dispensed toK.A. Atlanta, GA

4


Troy Sobert,

Andre Smith, MD

10/17/2003

Received 30 doses of Adipex 37.5

mg, prescribed by SMITH, M.D.

Andre D. smith, M.D. dispensed to

R.A.K. Atlanta, GA


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The government at a later date changes legal theories that changes the crimes of

the doctors to an misdemeanors nature and Stoufflets remain felonies.

Justification as to how Stoufflets aiding and abetting in misdemeanors offensesconstitute felonys for his offenses is needed.

9)INTENTIONAL MISREPRESENTING OF FACTS

The governments entire case is based upon half-truths and misleading

information. As revealed here, the governments numerous allegations of the

legal advice I received was based on the following excerpt, taken out of

context.

(June 5th

2002 letter from the law firm of Arent Fox to eScripts general counsel

Hewitt & Traub)

this letter is in follow-up to our most recent telephone conversation

on wednesday, may 22nd, and serves to summarize the status of the

many projects we are undertaking on behalf of our mutual client e-

scripts-md.com, l.l.c. (hereinafter "e-scripts" or the "company"), as

well as to brief you on our conversation with buddy parker. In light of

the recent events involving e-scripts, we felt it important to reiterate,

so there is no misunderstanding of our position, that there is a very

real risk of enforcement action, up to and including criminalsanctions, against the company and its principals for past and current

on-line prescribing practices. Moreover, we believe that if e-scripts

continues to operate its on-line prescribing services in its current

manner, the risk of an enforcement action increases.

KEY ISSUES THE GOVERNMENT FAILS TO STATE:

The letter is addressed to eScripts general counsel, Hewitt & Traub andc/c to Buddy Parker; not me.

The phone call with Buddy Parker entailed specific directions fromParker to Arent Fox that instructs Arent Fox to pass all matters through

him for final approval.


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After sending this letter, Arent Fox continues providing legal services.Contrary to risking criminal sanctions Arent Fox remains involvement

increases providing mechanisms that greater enhance the compliance of

the business.

At no time did Arent Fox was any attempt made to discourage thecontinuing of the business.

Arent Fox was providing clear and unmistakable advice.EXAMPLE: Arent Fox advised that we discontinue conducting business in

Nevada. Upon receiving this instruction, we immediately complied.

At no time did they readdress this risk issue, as one would except if itposed any danger.

Arent Fox did not withdraw and continue their involvement.Lawyers are required to withdraw if significant risks are posed, but the

fact that Arent Fox becomes more active in the business over the next

13 months is instrumental in my belief we were not doing anything

illegal.

10)TACTICS TO EDUCE INVOLUNTARY GUILTY PLEA9The government knows I had no intentions on pleading guilty so they simply

barred me from using the advice-of-counsel defense. They waited ten days

before trial to declare this argument and in doing so, set in motion a trap for

an unconscionable plea agreement which I was forced to enter before the

9GUILTY PLEAS USAM: 9-27.440 Plea Agreements When Defendant Denies Guilt

The attorney for the government should not, except with the approval of the Assistant Attorney General with

supervisory responsibility over the subject matter, enter into a plea agreement if the defendant maintains his/her

innocence with respect to the charge or charges to which he/she offers to plead guilty. In a case in which the

defendant tenders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the

attorney for the government should make an offer of proof of all facts known to the government to support the

conclusion that the defendant is in fact guilty.

Involvement by attorneys for the government in the inducement of guilty pleas by defendants who protest their

innocence may create an appearance of prosecutorial overreaching. As one court put it, "the public might well not

understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of

pleading guilty and going to jail." See United States v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971). Consequently, it

is preferable to have a jury resolve the factual and legal dispute between the government and the defendant,

rather than have government attorneys encourage defendants to plead guilty under circumstances that the public

might regard as questionable or unfair.


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judge would even rule on the issue.the very same plea agreement I refused

to enter into for the previous 19 months.

The day after the government barred my case-in-chief defense (Friday,

02/29/2008) I was given approximately 72 hours to plead guilty due to adeadline the government set to remove the plea. (Monday, 03/03/2008)

It is no coincidence that two business days after the government changed legal

positions 17 by entering their Motion in Limine, barring Stoufflet from relying

on the legal advice he received, that Stoufflet all-of-a sudden decided he was

guilty and wished to proceed to Court to plead guilty.

KEY FACTORS NOT PRESENTED TO THE COURT

a)

I refused numerous opportunities to plead guilty with previouscounsel [Parker]

b) I spent remaining funds on new counsel, trial experts [Garland andSamuel] when I had Parker already retained

c) I spent 19 months preparing for triald) I consistently refused to plead guilty for 19 months (turning down

that very same agreement I was forced into)

e) I chose to face 292-365 months of incarceration rather than pleadguilty for 19 months

f) Within weeks of entering the plea, I inquired about issues relating tothe exclusion of the advice of counsel defense to Don Samuelg) I had no knowledge there was a provision to seek withdrawal of a

Guilty Plea until May of 2008 (when researching my case)

h) When I inquired to both Samuel & Zimmerman about I didnt wantthe amount of time that had passed to effect my ability to withdraw

they both confirmed that was not an issue

11)CONTINUING DUTY TO DISCLOSE

Prosecutors disregard their continuing duty to disclose evidence favorable tothe accused. At this time, the government has no creditable witnesses to

support their claims and has made no effort to disclose the events which

support this issue.


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The government has claimed its star witness against me is my former lifelong

friend and business partner, codefendant Sobert. Sobert had maintained his

innocence for approx 15 months after being criminally charged. Due to

immense pressure, he pled guilty in late 2007.

In April 2008, Sobert testified for the government at the trial of codefendant,

Dr. Andre Smith. Mr. Soberts testimony contradicts the governments case

and presents serious conflicts of his guilty plea.

12)REPETITIVE USE FALSE STATEMENTSThe government had consistently asserted the following false statement:

No one associated with the defendants checked the accuracy of the informationcustomers provided, including their identities, ages, and qualifying medical

conditions, such as weight.

The facts reveal that I had an entire department dedicated to verifying

customer information. Thousands of verifications performed and I provided

case agent Kuykendall evidence of this in September 2008. From that point

forward, the government knowingly continued to assert false information.

[example: see Stoufflet PSR]

On 09/23/2009 FDA agent Kuykendall admitted in Court that Stoufflet had

provided a book of customer verifications. To date, the government hasfailed to make any corrections to the false allegations.

13)PROSECUTORS DISMANTLING OF THE LAWThe prosecutors ability to utilize specific parts of the law strongly indicate

another manipulation attempt to fit their theory of prosecution.

The Controlled Substance Act, Section 1306.4 describes the purpose of issues

of prescription.10

This statue describes the responsibility of the prescribing

10Section 1306.04 Purpose of issue of prescription. (a) A prescription for a controlled substance to be effective

must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his

professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon

the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.

An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate

and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C.

829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be

subject to the penalties provided for violations of the provisions of law relating to controlled substances.


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practitioner and the pharmacist. The law clearly states the person knowingly

filling such a purported prescription, as well as the person issuing it, shall be

subject to the penalties

I was informed by numerous pharmacies that they were passing unannouncedinspections by the State Pharmacy Boards and the DEA. There is sufficient

reason to believe the pharmacies compliance contradicts and creates many

problems in the governments case. The pharmacies were licensed by the DOJ

DEA. The conflicting positions by the U.S. Attorneys Office and the DEA is

apparent.

14)MERITLESS MOTION SEEKING DETENTION

Two days after I informed the court of the governments conduct, the

government attempted to detain me. This was done by fabricating a story andmisrepresenting the facts, again.

The government alleged that I was a flight-risk and my behavior was erratic.

The so-called erratic behavior was taken completely out of context. It was

based upon my former defense attorney, Lawrence Zimmermans statement

pertaining to the lawyers involvement in the offenses as criminal, and his

confirming he was not part of those crimes. Realizing his culpability in these

crimes, he withdrew as counsel.

The government solution simply ignores the lawyers culpability in the crimes

and seeks wrongful detention.

15)U.S. ATTORNEYS OFFICE FOR THE NORTHERN DISTRICT OF GEORGIAS

PREVIOUS POSITION AND KNOWLEDGE OF MY ACTIVITIES

The U.S. Attorneys Office for the Northern District of Georgias current theory

of prosecution is inconsistent with the previous position taken by former lead

prosecutor, AUSA Ms. Sandy Stropolli.

The U.S. Attorneys Office for the Northern District of Georgia under AUSA

Stropolli had full knowledge of what I was doing and made no objection at any

time, thus allowing me to continue operating my business for an additional 2

years. Ms. Stropolli and Judge Scofield also knew of our customer verification

process. In December 2003, I voluntarily closed the business.


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From the time I closed the business until the time I was criminally charged, no

law passed outlawing the services my company performed. However, the

indictment alleges that I was illegally operating during those 2 years.

Furthermore, there was no attempt made to inform me that your office had

taken a different position.

Your office was well aware that I had spent millions of dollars, engaging what I

thought was the very best lawyers so my business remained compliant, but no

effort at all was made to warn any of those lawyers . Your office also knew my

willingness to comply with the law due to the fact that I had personally

contacted the Department of Justice on two occasions and the DEA several

times in an effort to comply. Yet, not one phone call, not one letter, or email

was sent to provide me any notice or any chance to comply. I respectfully ask

that someone interview AUSA Stropolli about this issue.

16)WITHHOLDING EXCULPATORY EVIDENCE

Prosecutors have committed serious violations of Brady and Giglio against me

and my co-defendants and to date these issues remain undisclosed.

(see enclosed Brady Violations and Suppressed Evidence Chart)

Verification of Customer Information: The Government has emphasized

throughout the proceedings that customers could order controlled

substances without any verification being performed.

The indictment and throughout the proceedings the government has

maintained:

No one associated with the defendants checked the accuracy of the

information customers provided, including their identities, ages, and

qualifying medical conditions, such as weight.

The prosecutors intentional false misrepresentations are repeated in the

Criminal Indictment, numerous MOTIONS, the PSR, and in open court duringthe trial of co-defendant Dr. Smith. Stoufflet met with AUSA Sommerfeld and

Chartash and presented them evidence that customer information was being

verified.


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that showed copies of drivers' licenses of patients -- of

customers. There were approximately 37.

The evidence proves were thousands of verifications, not just 37. Stoufflet

informed the government of this prior to the closure of the co-defendantscases yet to date, the government has made no attempt to correct their

flagrant misuse of false statements.

Interviews of Stoufflet employees would reveal verifications due to the

common knowledge of this task that was performed on a daily basis.

17)BREACHING ATTORNEY-CLIENT PRIVILEGE

Lead prosecutor Chartash contacted eScripts general counsel, Darren Traub, to

obtain privileged information on April 26, 2007.

The government was aware that a Joint Defense Agreement existed, and to

date remains active as no parities withdrew as mandated in the agreement.

18)WILLFUL DECEIT AND UNTRUTHFULNESSThe government has failed to take any action to correct the deficient repeated

misrepresentations. (see PSR) Submitted corrections were implemented but

the PSR miserably falls short from factual. (see Don Samuels additions)

a. Doctor/Patient communications: The Governments state throughout theproceedings that the doctors had no contact with the patients. This is false

because I had employed physicians extra to promptly respond to customer

questions via email and phone.

b. Changing of company names: The indictment incorrectly states: By on or

about March 1, 2003 the Defendants moved offices and renamed the

company Virtual Wellness Networks.

This is FALSE: the company was not renamed, Virtual Wellness Networks,

INC was a new entity created in the development and growth of the

business.

19)MISUSE OF LAW AND POLICY

The governments repeated misuse of medical board policies as state law

strongly suggest it is intentional.


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The government claim that the State Law referred to in the indictment was

only an illustrative tool. But the governments repetitive reference of a

policy as law becomes abusive. Presented in this manner thegovernments misleading statement alleges law violations when in fact no law

existed. Medical board polices regulate licensed doctors only. That loophole

provided the ability to consolidate the allegations under the Controlled

Substance Act which carry harsh punishment for offenders. As a result, the

governments massive confusion becomes evident during jury deliberations

that resulted in a mistrial against Dr. Smith.

The disdain for citizens of this country exhibited in such a wasteful manner by

prosecutors is appalling and should be made public.

20)MEETING WITH STOUFFLET WITHOUT COUNSEL

I was not aware I had to request the Court terminate my defense counsel. I

thought I had terminated defense counsel Don Samuel and Ed Garland and I

informed AUSA Sommerfeld and Chartash of this. After meeting with me,

without counsel present, AUSA Sommerfeld and Chartash informed me that

until the Court Docket reflected otherwise, Garland and Samuel remained

counsel.

Both AUSA Sommerfeld and U.S. Attorney Nahmias strongly advised me toremain with said counsel.

21)BINDING LEGAL CONTRACTS

Government has failed to disclose that they provided false information and

entered into binding legal agreements to obtain the controlled substance for

the indictment.

22)ENACTMENT OF NEW LAW PRESENTS LEGAL CHALLENGES

10/15/2008: Congress amended the very statues used in the prosecution ofthis case. This law outlaws the conduct I am accused of violating. There is

good reason to believe that prior to the enactment of this law, the conduct

was legal, or the law was so unclear, Congress had to amended it.


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1. Federal law enforcement priorities;

2. The nature and seriousness of the offense:

(Stoufflet closed the business2 years prior to being charged)

3. The deterrent effect of prosecution;

(Stoufflet voluntarily closed the business)4. The person's culpability in connection with the offense;

(Stoufflet acted on the advice of his lawyers at all times)

5. The person's history with respect to criminal activity;

(Stoufflet has one felony over twenty years ago)

6. The person's willingness to cooperate in the investigation or prosecution

of others; and

(Stoufflet initiated contact with the FDA, DEA, USDOJ, specifically inquiring

about the legality of his business on several occasions)

7. The probable sentence or other consequences if the person is convicted.

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Prosecutorial Misconduct Issues 02.09.2010