Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA )

)
v. ) CASE NO. 1:08-CR-00082
)
CHRISTOPHER STOUFFLET, )
Defendant. )
____________________________________)

MOTION TO WITHDRAW GUILTY PLEA OF

DEFENDANT CHRISTOPHER STOUFFLET

Comes Now, Defendant, Christopher Stoufflet, and pursuant to Fed. R. Crim. P. Rule

11(d) (2) moves this Court to withdraw his guilty plea. In support thereof, Defendant shows this

Honorable Court the following:

I. FACTUAL BACKGROUND

A. Pre-Indictment Background

In or around 1995, Defendant and co-defendant Troy Sobert owned a business

management company that employed United States physicians to work in clinical settings for the

treatment of obesity. Each of these doctors was paid by the hour and qualifying patients would

receive a prescription under the Food and Drug Administration’s guidelines. During that time,

the internet was beginning to grow out of its infancy and fast became a wonderful resource for

businesses to promote their business. As a matter of being compliant with federal and state laws,

Mr. Stoufflet contacted each State’s medical board to inquire about the legality of online drug

prescriptions and further requested that the FDA investigate his business to determine

compliance. In 1997 Kilpatrick and Stockton was hired for their advice before Mr. Stoufflet

opened his business.

1
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 2 of 12

In August of 2000, Defendant began consulting with well known law firms who

specialized in this area of government regulations and health law. Mr. Stoufflet was concerned

because a pharmacy that had been filling prescriptions for his business was being investigated by

the government. At that time, Stoufflet ceased all business activities and had Kilpatrick and

Stockton to investigate and research the legality of operating an internet company that would

dispense written prescriptions, primarily weight loss drugs.

At the suggestion of Kilpatrick and Stockton lawyer, Craig Bertschi, Mr. Stoufflet hired

Mr. Wilmer “Buddy” Parker who was also working at Kilpatrick and Stockton at the time. It was

expressed to Mr. Stoufflet that Mr. Parker, who once headed the Narcotics Division for the

United States Attorney’s Office in the Northern District of Georgia, would provide invaluable

insight and advice as to the legality of the internet based business model. Furthermore, in late

2000, Mr. Stoufflet asked FDA Special Agent Paul Southern to investigate his business to make

sure it was in compliance with both federal and state laws. Upon assurances from Mr. Southern

that he saw no issues with the legality of the business, Mr. Stoufflet continued to run the

business.

In August of 2001, a federal search warrant was executed on EScripts, Mr. Stoufflet’s

business. At that time, Buddy Parker met with the company’s staff and advised them that

working at EScripts was acceptable. On or about August 9, 2001, a hearing was held based on a

motion filed, by Stoufflet’s lawyers, pursuant to Fed. R. Crim. P. Rule 41(g). This hearing was

before the Honorable E. Clayton Scofield and the government was represented by Sandra

Strippoli. After hearing the evidence, Judge Scofield found no basis for the seizure and ordered

the government to return the company property to Mr. Stoufflet so he could continue with his

online prescriptions business.

2
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 3 of 12

This business was a legitimate one with many employees in various roles. Mr. Stoufflet

hired a well known accounting firm, Verner, Bromberg and Cohen to assist in payroll and any

taxation issues. In addition, he also hired forensic accountant Ted Robertson to make sure that

there was no wrongdoing. Furthermore, Mr. Stoufflet hired Mel Hewitt, Esq., as his in-house

corporate attorney, to give him daily and weekly updates regarding any changing laws across the

country to ensure federal and state compliance. At Mr. Hewitt’s suggestion, Mr. Stoufflet also

retained Arent Fox, LLC, a law firm specializing in health law matters, to review the evolving

laws and provide advice. Mr. Stoufflet specifically requested that if any of the company’s acts

were illegal under evolving law that it should be made known to him immediately so the

business could be shut down. Arent Fox indeed sent letters to Mr. Stoufflet, but only with

warnings couched as high, medium, and low risk. These letters were directed to Buddy Parker,

per his instructions, and all decisions were to be approved by him. Additionally, Arent Fox also

drafted contracts for Mr. Stoufflet’s company and its physicians; drafted informed consent

notices for patients; sent letters and emails to Stoufflet regarding procedures for shipping items

via Federal Express (only an adult who had their name on the delivery signature could accept

shipment of the prescription); reviewed all the laws for each state where physician was licensed

to ensure legality; and reviewed laws in each state where the pharmacies were located. All of the

above are just a snapshot of the lengths that Mr. Stoufflet went in order to stay within the law of

the United States.

Mr. Stoufflet never received any letters from his lawyers that his actions were illegal, and

in fact, Kilpatrick and Stockton advised that at most, an overzealous prosecutor may attempt to

prosecute based on their interpretation of a doctor/patient relationship. See Docket Report # 218

(attached exhibits and response of Don Samuel providing in-depth background as well).

3
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 4 of 12

B. Background on Indictment and Motions

Unfortunately, on August 8, 2006, a Fifty-One (51) Count indictment was unsealed

charging Mr. Stoufflet and several co-defendants (including several physicians) with violations

of federal law. When this case began, Mr. Stoufflet signed a joint defense agreement along with

co-defendants Erin Riggins and Troy Sobert. Co-defendant Riggins was represented by Craig

Gillen and co-defendant Sobert was represented by Jerry Froehlich. During the pendency of the

case, the defense filed numerous relevant motions with regard to the substantive issues of the

case. On March 28, 2008, the United States Attorney’s Office filed a motion in limine to prevent

Mr. Stoufflet from raising his sole defense, advice of counsel, at his trial. See Docket Report

#217. It was the filing of this motion that put Mr. Stoufflet’s life into a tailspin and caused him

unyielding stress. When this motion was filed, the Government made an offer to Mr. Stoufflet:

agree to plead guilty within seventy-two hours prior to this Honorable Court’s ruling, or any plea

agreement was revoked and Defendant Stoufflet would be faced with the prospect of proceeding

to trial without the benefit of an advice of counsel defense if this Honorable Court made an

adverse ruling to the defense.

C. Guilty Plea Hearing

Once Mr. Stoufflet met with his criminal defense lawyers, the esteemed and well

regarded Don Samuel and Edward T. Garland, he decided, under extreme pressure, to plead

guilty due to the government’s deadline. Thus, Mr. Stoufflet entered a guilty plea before this

Honorable Court on March 4, 2008. During the plea hearing, this Honorable Court did not

properly advise Defendant Stoufflet of his right against being compelled to incriminate himself

at a jury trial should he proceed to one. Specifically, this Court only advised the following:

4
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 5 of 12

[a]nd you also waive your right not to be compelled

to incriminate yourself. In other words, should I ask
you any questions as relates to your involvement as it
relates to Count One and Two of the indictment, the counts
to which you are pleading guilty, you must be truthful and tell me
exactly what it was you did in connection with those two offenses.
Do you understand that? See Plea Hearing Transcript
Page10(hereinafter referred to as “P.T.”).

D. Post-Plea Hearing, Court’s Ruling and Defendant’s Actions

Subsequent to this guilty plea, on March 7, 2008, this Honorable Court denied the

Government’s Motion in Limine to exclude advice of counsel, mistake of law, good faith

defense, and erroneous belief that the conduct was legal. See Docket #225. In said order, this

Court wrote, in part:

The Government’s interpretation is not supported, however, by

Eleventh Circuit and other circuit court decisions that have since
interpreted and discussed the holding and implications of Cameron
in relation to the statutory provisions at issue in this case. In
Ettinger, 344 F.3d 1149 (11th Cir.2003), the Eleventh Circuit
stated, in relevant part, the following: Cameron is the perfect
example of a “specific intent” crime and the use of a “diminished
capacity defense” to negate the specific intent element of the
crime. Cameron was charged with participating in a conspiracy to
distribute “crack” cocaine in violation of 21 U.S.C. § 841(a)(1).
Section 841(a)(1) makes it unlawful for a person knowingly and
intentionally to possess with intent to distribute a controlled
substance.

Mr. Stoufflet relied on the advice of his attorneys that it was a highly

probable that this Honorable Court would grant the Government’s motion to exclude the

defenses. Although the particulars of specific versus general intent crimes do not seem

complex, in the instant indictment, the issue was more complicated than usual. Clearly,

an exclusion of these sole defenses to all counts of the indictment would have been

reversible error. The Court did rule that the counts were specific intent crimes which

would allow a defendant to raise the advice of counsel defense. However, Mr. Stoufflet

5
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 6 of 12

claims that his counsel advised him that the court could legally exclude this defense to

each of the first four counts in the bill of indictment. Therefore, relying on this advice and

the government’s pressure, he entered into the guilty plea.

E. Congressional Activities and Hearings on Internet Prescription Laws.

Over the course of several years, Congress held hearings with regards to the

internet prescription stores. At an earlier subcommittee hearing, on May 25, 2005, Jody

Feder, a Legislative Attorney told our Congress that internet prescriptions was a gray area

of law and “this practice though potentially unsafe for patients who may be diagnosed

incorrectly, is not necessarily illegal.” See Letters attached by Defendant Stoufflet.

On or around June 24, 2008, a United States Congress subcommittee on Crime,

Terrorism and Homeland Security held more hearings regarding online pharmacies and

internet drug abuse. At that hearing, DEA Deputy Assistant, Joseph Rannazzisi testified

regarding the gray areas of the drug laws as applied to the internet. He stated to Congress,

“the current laws used to police the web are ambiguous and ineffective, so even

lawmakers are demanding clarity.”

In late 2008, Congress decided to clarify the law as it pertains to online pharmacies and

enacted the Online Pharmacy Consumer Protection Act of 2008. See 21 U.S.C.A. § 831. This

piece of legislation was aimed at curbing illegal internet pharmaceutical sales and now provides

explicit law governing the operation of an internet pharmacy. Some of the provisions in the Act

state that the internet site must contain the pharmacist’s name, degree, and State of license.

Furthermore, it requires that a patient have one prior in-person medical evaluation with a

physician before receiving a prescription. Also, the website must post the name, address,

telephone number, professional degree, and the States of licensure of the practitioner who has a

contractual relationship with the company to provide medical evaluations. See 21 U.S.C.A.
6
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 7 of 12

§831. Mr. Stoufflet’s company did actually did this while they were in business other than the in-

person medical evaluation. This law does not go into effect until April of this year.

F. Defendant Stoufflet’s Request to Withdraw His Guilty Plea

It is very important to note that Mr. Stoufflet has never once denied his activities

in the instant case. Mr. Stoufflet spent a great amount of his financial resources to obtain

advice from the preeminent attorneys in their specialized fields of law to ensure

compliance. He indeed committed all of the acts that the government alleges he did and

accepts full responsibility for those actions. However, the real question is whether or not

he knew these actions were illegal based on the advice he received from countless

attorneys who exhausted incredible amounts of time researching the legalities of this

operation. This is not a simple issue evidenced by the fact that at one point Defendant

Stoufflet had almost forty-one lawyers working on these issues.

II. ARGUMENT AND CITATION OF AUTHORITY

A. Withdrawal is Fair and Just

Pursuant to Rule 11(d),

[a] defendant may withdraw a plea of guilty or nolo

contendre:… (2) after the court accepts the plea but
before it imposes Sentence if : (A) the court rejects the plea
agreement under Rule 11(c)(5); or (B) the defendant can
show a fair and just reason for requesting the withdrawal.

In making a ruling with regards to granting a motion to withdraw a guilty

plea, the court may consider the totality of the circumstances including : (1)

whether close assistance of counsel was available; (2) whether the plea was

knowing and voluntary; (3) whether judicial resources would be conserved; (4)

whether the government would be prejudiced if the defendant were allowed to

7
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 8 of 12

withdraw his plea. United States v. Buckles, 843 F. 2d 469, 471-472 (11th Cir.

1998); United States v. Weaver, 275 F. 3d 1320 (11th Cir. 2001).

In the case sub judice, Defendant Stoufflet can show a fair and just reason for

withdrawing his guilty plea. The guilty plea was not knowing and voluntary. He was under an

inordinate amount of stress and pressure and was not thinking clearly at the time he accepted the

government’s offer. By setting a three day deadline to accept the guilty plea, Mr. Stoufflet felt

that awaiting the Court’s ruling on the government’s motion in limine was a ticking time bomb

holding very dire consequences. For several years prior, countless hours were spent, millions of

dollars were expended, issues were researched, and legal advice was disseminated. What was the

point of all this legal advice for all of these years if the court could remove this defense?

However, with a possible stroke of this Honorable Court’s pen, an order barring Mr. Stoufflet

from presenting his sole defense was looming. If a person cannot seek advice from a lawyer and

depend on that advice to protect them, then the relevancy of lawyers and the law has been

severely incapacitated and our adversarial system serves no real purpose. Thus, he felt compelled

to plead guilty if his sole defense was being stripped away.

According to Mr. Stoufflet, during the plea, he felt, “numb” and did not fully comprehend

his actions or the magnitude of his decision. By feeling such enormous pressure, he could not

voluntarily enter into the plea because he believed he was being forced to plead this way.

Although the record reflects that the Honorable Court asked him if he was being forced or

threatened and he answered in the negative, Mr. Stoufflet claims he was scared to answer any

differently at the time. This Court is acutely aware of these facts because Mr. Stoufflet has sent

letters to the Court addressing this very issue. Fortunately, Mr. Stoufflet has seen fit to now

truthfully admit to the Court that he had previously been untruthful at his guilty plea hearing.

8
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 9 of 12

Although close assistance of counsel was available, Mr. Stoufflet began not to trust his attorneys

Garland and Samuel. He claims that they pressured him into accepting a guilty plea once it was

proposed to them by the government. Therefore, any loss of confidence in one’s attorneys would

probably eradicate any close assistance of counsel. And, in the end, this Honorable Court in fact

ruled that the defendants could use the advice of counsel defense.

Undoubtedly, the government would not be prejudiced if Defendant Stoufflet were

allowed to withdraw his guilty plea. The prosecution witnesses have not disappeared and the

government can readily locate them. Furthermore, the government’s case has been made easier

by the fact that many of the defendants pleaded guilty, so Mr. Stoufflet would be the sole

defendant and his former co-defendants would probably be called to testify against him. As to

the conservation of judicial resources, it is clear a trial will cost more money, but at this point,

Defendant Stoufflet would be the only one proceeding to a trial and no other trials were held in

the instant indictment. Thus, the judicial resources would not be as great at this point. In

addition, up to this point, Defendant Stoufflet always had privately retained counsel. The fact

that some judicial resources will now be used for his defense is just one factor weighing against

Stoufflet. See United States v. Buckles, 843 F. 2d 469 (1988).

Most importantly, it was obvious to Congress, and many of Mr. Stoufflet’s attorneys, that

these internet pharmacies were operating in a legal gray area and that legislation needed to be

passed to clarify existing laws. The enactment of this legislation, 21 U.S.C.A. § 831, is specific

and clear about what makes an internet pharmacy legal unlike the hodgepodge of archaic laws

that the government is using to prosecute Mr. Stoufflet. If this law was enacted when Mr.

Stoufflet decided to open his business, it is certain that all of his lawyers would have cited the

need to follow that law to the very letter. Mr. Stoufflet pleaded guilty to something that was

9
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 10 of 12

questionably legal. The majority of factors weigh in Defendant Stoufflet’s favor that

withdrawing this plea is fair and just, and he should be allowed to withdraw for the above

reasons.

B. Court Misinformed Defendant of Right Against Self-Incrimination

A court when accepting a guilty plea needs to review a defendant’s federal constitutional

trial rights that they are waiving. In fact, Rule 11(1)(E) of the Federal Rules of Criminal

Procedure states, “[t]he right to confront and cross-examine adverse witnesses, to be protected

from compelled self-incrimination, to testify and present evidence, and to compel the attendance

of witnesses.” Defendant must be informed of Fifth Amendment right against compulsory self-

incrimination. Boykin v. Alabama, 395 U.S. 238 (1969). Defendant must waive these important

federal constitutional rights when a plea of guilty is entered. Id. Since a guilty plea is also a

waiver of constitutional trial rights, it not only must be voluntary but must be a knowing,

intelligent act done with sufficient awareness of the relevant circumstances and likely

consequences. Brady v. United States, 397 U.S. 742, 748 (1970).

This Honorable Court, when discussing the right against self-incrimination, informed

Defendant that he is giving up this right to be compelled as it related to the court’s questions.

(P.T. 10). The waiver of this right is specifically about being compelled to incriminate oneself at

a trial not at a guilty plea proceeding. This Honorable Court’s explanation to Defendant Stoufflet

was misleading and therefore was not a knowing relinquishment of that right. As such, this Court

should find that this invalidates any knowing and voluntary plea and should allow a withdrawal

for these reasons as well.

10
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 11 of 12

III. Conclusion

Based on the foregoing reasons, Defendant requests that he be allowed to

withdraw his guilty plea and proceed to a jury trial. Additionally, Defendant prays for an

evidentiary hearing of this matter to inquire of the Defendant. Also, Counsel has attached

numerous exhibits and letters to this motion at Defendant’s request.

Respectfully submitted,

s/Lawrence J. Zimmerman
Lawrence J. Zimmerman
Attorney for Defendant
SBN: 785198

11
 Case 1:08-cr-00082-CC Document 16 Filed 02/20/2009 Page 12 of 12

CERTIFICATE OF SERVICE

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

foregoing MOTION TO WITHDRAW GUILTY PLEA OF DEFENDANT CHRISTOPHER

STOUFFLET upon 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 20th day of February, 2009.

s/Lawrence J. Zimmerman
Lawrence J. Zimmerman
Georgia Bar No.785198

Suite 300
1800 Peachtree Street
Atlanta, GA 30309
(404) 351-3000

12