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Lawrence J. Zimmerman
1800 Peachtree St. NW
Suite 300
Atlanta, GA. 30309
RE: REQUEST TO INVESTIGATE ALLEGATIONS OF DEFECTIVE
PEROFRMANCE OF FORMER DEFENSE COUNSEL AND OTHER
CONSTITUTIONAL & RULE VIOLATIONS
CRIMINAL CASE NO: 1:08‐CR‐00082
Dear Mr. Zimmerman:
Since you have been appointed to my case, you have been encompassed
with what seems to be an insurmountable task of untangling the truth from
a web of deception created by both prosecutors and masters of the
criminal justice system, Ed Garland and Don Samuel.
With all of your efforts placed on finding legal grounds to seek withdrawal
from a wrongfully obtained Guilty Plea, I believe the many critical issues in
my case have been overlooked.
It is as if a crime scene is being investigated for murder, and all
efforts are placed in determining whether digging a ditch on public
land was a crime, overlooking the corpse in that ditch…….
It is the Constitutional Sixth Amendment Right and your duty to thoroughly
investigate my case.
“In providing effective assistance of counsel consistent with the Sixth
Amendment, defense counsel has an independent duty to investigate
the case”.
1
Since my former defense counsel has deliberately failed to investigate and
take remedially action necessary to correct the injustice, I believed you
would take the steps necessary to seek justice in my case.
Georgia has adopted the rule that an ineffective assistance of counsel claim
must be raised at “the earliest practicable moment” and seven months
have now passed and yet you have turned a blind‐eye to all the
wrongdoing.
I have spent much time reviewing The State Bar of Georgia’s Rules of
Professional Conduct and the ABA Rules for Reporting Professional
Misconduct and the need for swift action on your behalf is critical and I
believe rightfully justified.
The Sixth Amendment recognizes the right to the assistance of
counsel because it envisions counsel's playing a role that is critical to
the ability of the adversarial system to produce just results. An
accused is entitled to be assisted by an attorney, whether retained or
appointed, who plays the role necessary to ensure that the trial is fair.
My intentions are not to offend you in any way, but I must express my
concerns to you. Many of the issues I have deemed problematic for years
have yet to be addressed. You are the attorney, not me, and I believe you
should be the one to aggressively pursue each issue, not me.
I believe you, more than anyone else, should be the most knowledgeable in
my case and armed with the facts. It evident you cannot rely on Garland
and Samuel to provide you with the facts of my case, as they have already
misrepresented many important issues, including the blatant and obvious
Conflict‐of‐Interest issue that is now under investigation.
Please also remember I requested that Judge Cooper perform a Formal
Inquiry into some of these very issues. It can be assumed that if my issues
were valid, you would have already addressed them by now with the Court.
The fact that the issues have not been addressed allows for the m
misconception that upon your acceptance of the case, you performed a
thorough review of the issue and they have no merit. We know this not to
2
U.S. ATTORNEY’S OFFICE FOR THE
NORTHERN DISTRICT OF GEORGIA
1
See attached graphic diagram of participating parties
1
law‐firms such as Seyfarth Shaw, LLP; Kilpatrick Stockton, LLP; and
Arent Fox, LLC. This was in addition to fulltime, in‐house legal
counsel.
Most importantly, as a preemptive measure to remain compliant and
within the bounds of the law, Stoufflet obtained legal services from
expert criminal attorneys, three former Assistant U.S. Attorneys;
Buddy Parker, Craig Gillen and Jerry Froelich. During the timeframe
the Government alleges the illegal conduct transpired, over 40
attorneys were involved in providing legal advice.
The evidence confirms that the lawyers believed the conduct was
legal. It is also important to note that at no time did any attorney
withdraw due to the business being too “risky”. The attorneys have
stated that everyone recognized there were “regulations, but no one
believed it was a Federal Crime of Drug Dealing”.
“IF”, as the Government alleges, a crime was committed, and "no
one is above the law", how is it possible for the lawyers and the
pharmacist to escape prosecution?
A. The lawyers crafted the legal framework in which each
alleged illegal transactions occurred.
B. The pharmacies 2 possessed, dispensed, and distributed
the alleged illegal “controlled substances”.
There is good reason to show that the decision not to include the
lawyers and the pharmacists was an intentional, strategic decision by
prosecutors for the following reasons:
• Prosecutor’s ability to utilize charges of “Conspiracy” in
the Indictment. Since “conspiring with a lawyer” defies
logic and common sense thinking, prosecutors simply
have excluded the lawyer’s involvement as if they never
2
Licensed by State Pharmacy Boards and the Attorney General under the DEA
2
existed.
• Prosecutors repeated efforts to remove appearances of
a “legally conducted business” is evident and increases
throughout the proceedings, until the point in which
they deny Stoufflet the ability to rely on the legal advice
he received.
• The legal agreements used in every transaction were
supplied by premier law firms. Convincing a jury that
these firms knowingly provided contracts for the
furtherance of criminal conduct becomes problematic
for the prosecutors.
• Engaging in “legal contracts” demonstrates “willfulness”
to comply with the law and the belief that everyone’s
conduct was legal.
• The Pharmacies that possessed, distributed, and
dispensed the alleged illegal weight loss pills were
operating under the provisions defined in the legal
contract.
• To minimize exposure of the prosecutor’s
misrepresentations, they avoid having to explain how
numerous separate entities, especially lawyers, didn’t
have any knowledge they were engaging in illegal
conduct.
• Avoidance of the fact that everyone believed the
business to be operating legally, in compliance with the
terms of their contract provide motive for the exclusion
of these key components.
It is understood that when seeking an Indictment, prosecutors are
not required to present evidence on behalf of the accused, but there
is an implied understanding that prosecutors are truthful and
accurately describe the acts that include the “essential elements” of
what transpired. In this case, the prosecutors have deliberately
manipulated the facts, leaving out the “essential elements” in order
to fit the crime.
3
Due to the fact that the Indictment miserably fails to depict anything
near what the facts reflect, there is sufficient reason to believe that
the prosecutors engaged in deception during Grand Jury
proceedings.
If the purpose of a "Grand Jury" is to determine if a case merits going
to trial, how can the jurors make a "fitting decision" if they are not
informed of accurate circumstances?
Counts 2‐4 of the Indictment
COUNT DEFENDNATS DATE CONTROLLED SUBSTANCE
DISTRIBUTED AND DISPENSED
2 Christopher Stoufflet, 09/16/2003 Received 30 doses of Phentermine
Troy Sobert, 37.5 mg, prescribed by SMITH, M.D.
Andre Smith, MD Andre D. smith, M.D. dispensed to
R.A.K. Atlanta, GA
3 Christopher Stoufflet, 10/01/2003 Received 30 doses of Phentermine
Troy Sobert, 37.5 mg, prescribed by SMITH, M.D.
Valdimr Andreis, MD Andre D. smith, M.D. dispensed to
K.A. Atlanta, GA
4 Christopher Stoufflet, 10/17/2003 Received 30 doses of Adipex 37.5
Troy Sobert, mg, prescribed by SMITH, M.D.
Andre Smith, MD Andre D. smith, M.D. dispensed to
R.A.K. Atlanta, GA
MISREPRESENTATIONS:
A. R.A.K. and K.A. entered into a binding legal agreement during
these transactions.
B. This legal agreement was crafted by the lawyers and used in
these transactions.
C. These “controlled substance” were “distributed and
dispensed” by licensed pharmacies.
D. Licensed medical doctors authorized and issued valid
prescriptions for these “controlled substances”.
E. The doctors and the pharmacists who “distributed and
dispensed” these “controlled substances” in Counts 2,3, & 4
were engaged in binding legal contracts.
F. These legal agreements were drafted by the attorneys.
4
Additional Facts
• The Government utilizes the following law as the basis of this
prosecution [specifically addresses the pharmacy agents}
Section 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.
Prosecutors have dismantled this law to sidestep the pharmacy’s
involvement so the alleged acts “fit the crime.”
• Conflicting Policies: During 2001‐2003, Stoufflet was regularly being
informed of unannounced, on‐site inspections at the pharmacies by
the DEA and State Pharmacy’s Boards. The 2006 U.S. Attorney’s
Office declaration that the business was illegal is contradictory to
these onsite inspections by the DEA which found the pharmacies to
be in compliance.
Based on the cumulative effect of the various acts of prosecutorial
misconduct, it is highly unlikely that the grand jury's decision to indict
was free from the substantial influence of this misconduct.
5
2. WITHHOLDING NEW FAVORABLE EVIDENCE
Verification of Customer Information: The Government has
emphasized throughout the proceedings that customers could order
“controlled substances” without any verification being performed.
The indictment specifically states:
“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 prosecutor’s intentionally false misrepresentations are repeated
in the Criminal Indictment, numerous MOTIONS, the PSR, and in
open court during the trial of co‐defendant Dr. Smith.
Stoufflet met with AUSA Sommerfeld and Chartash and presented
them evidence that customer information was being verified.
August 4th 2008: during an in person meeting with AUSA
Sommerfeld and AUSA Chartash, Stoufflet informed them about the
customer verification policies, procedures and that it was a vital
important part of everyday business.
August 20 2008: Stoufflet sent an email to his attorney, Don Samuel
to forward to prosecutors that provided proof of the verifications.
September 9 2008: Stoufflet exchanges emails with AUSA
Sommerfeld and AUSA Chartash and discussed the customer’s
verification issues again.
September 19 2008: Stoufflet meet with AUSA Sommerfeld,
Chartash, and FDA Special Agent Robert Kuykendall and presented a
large amount of evidence of customer verifications.
October 20 2008: Having proof of this new information, the
Government submitted objections to the Pre‐sentence Report and
yet failed to make any corrections to the incorrect information
regarding the customer verification.
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October 30 2008: Don Samuel submitted objections to Stoufflet's PSR
that confirmed the “customer verification” process.
To date, the U.S. Attorney’s Office for the Northern District of
Georgia has withheld this new favorable evidence from the co‐
defendants, Court and to Stoufflet.
3. FUNDAMENTAL FAIRNESS IN THE PROCEEDINGS
A. “BAIT AND SWITCH” TACTICS USED TO GAIN THE UNFAIR
ADVANTAGE TO STOUFFLET’S DEFENSE
On July 11, 2007, the Government requested Stoufflet formally
declare if he was asserting “Advice‐of‐Counsel” defense in
“GOVERNMENT’S MOTION FOR DISCLOSURE OF RELIANCE ON
ADVICE OF COUNSEL (Doc #183)
In asserting the Advice‐of‐Counsel defense, Stoufflet was
required to waive Attorney‐Client‐Privilege and disclose all
attorney‐client work product [all his evidence] to the
Government. (This was done in November of 2007).
The MOTION specifically stated:
“If an advice of counsel defense is first asserted at trial, thus
waiving defendant’s attorney‐client privilege, the government
will then be in the difficult and unfair position of being forced
to respond in the middle of the trial to a large quantity of new
information. If he is unwilling to so notify the government, then
he should be precluded from raising such a defense at trial.”
This information affirmed Stoufflet’s right to use the advice of
counsel defense if he complied with the Government’s
request.
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After reviewing all of Stoufflet’s evidence for approximately 7
months, the Government conveniently waited until ten days
before trial to deny Stoufflet the ability to use the Advice‐of–
Counsel defense; Motion in Limine (Doc. #217) on Thursday,
February 28, 2008.
The MOTION specifically stated:
“As discussed further below, good faith defenses, such as the
advice‐of‐counsel, only apply to crimes requiring a specific
intent to break the law. As to the general intent crimes charged
in the Indictment, such defenses are irrelevant as a matter of
law”.
The following day, Friday, February 29th 2008, Stoufflet was
informed of the government’s position and that they would
remove the plea option on Monday, March 3rd 2009,
intentionally expiring before the Court would rule. Stoufflet
was given approximately 72 hours to make a life changing
decision, placing him in unnecessary state of duress.
By obtaining Stoufflet’s evidence and then, in a sudden‐about‐
face, barring Stoufflet from using it, the government armed
themselves with the “Shield and the Sword,” (which in
according to their position in Motion 183 was not allowed)
giving them the unfair advantage. By forbidding Stoufflet from
using his only viable defense, the defendant was left
defenseless.
B. VOLUNTARINESS OF THE PLEA
Capitalizing on this window of opportunity, the Government
rushed Stoufflet into the courtroom the following morning,
Tuesday, March 4th 2009 so he could enter a false guilty plea.
8
It was under those circumstances that Stoufflet plead Guilty.
Since the plea was not voluntary, and in light of the Judge’s
Order of 3/7/2008 [Doc 225], Stoufflet has moved to withdraw
the guilty plea.
There were numerous discussions with Stoufflet's defense
counsel about entering a Guilty Plea, but Stoufflet insisted on
going trial even though losing at trial subjected him
incarceration for 292‐365 months (24‐30 years). Knowing this
fact, the Government took another approach and maneuvered
themselves into an overpowering position as described above
to “railroad” Stoufflet into pleading guilty falsely. The
“Voluntariness” procedures used in obtaining this Guilty Plea
engaged in by AUSA Sommerfeld and Chartash warrant review.
Three days after entering into the Guilty plea agreement, on
March 7, 2008, the Honorable Clarence Cooper issued an
Order denying the Government’s Motion in Limine, allowing
Stoufflet to assert Advice of Counsel as his defense. The order
pointed out that the prosecutors had misclassified the alleged
crimes as general intent crimes. The Judge's order correctly
classified the alleged crimes as specific intent crimes to which
advice of counsel defense is appropriate.
Stoufflet found out about this ruling months later, on his own,
while researching issues relevant to his case. Neither
prosecutors nor defense counsel had informed him of this
Order which ruled in his favor.
C. PROSECUTORS REMEDY FOR THIER MISAPPLICATION OF
LAW; NEW, ADDITIONAL CHARGES FOR OBSTRUCTION OF
JUSTICE
Stoufflet has now been threatened with additional charges of
Obstruction of Justice if he seeks to withdraw the Guilty Plea.
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4. GOVERNMENT’S BAD FAITH EFFORTS
Prosecutors were fully aware that Stoufflet had met all of the
requirements necessary to assert an "Advice of Counsel" defense.
Still, they sought to deny Stoufflet the ability to rely on the legal
advice he received while operating the alleged illegal business.
The facts reflect that:
Before taking any action with regard to the alleged offense:
A. he consulted in good faith an attorney
B. whom he considered competent,
C. made a full and accurate report to his attorney of all
material facts of which he had the means of knowledge,
D. and then acted strictly in accordance with the advice
given to him by his attorney.
In a bad faith attempt to deny Stoufflet Due Process, on the eve
before trial, prosecutors proclaimed as a matter of law, Advice‐of‐
Counsel is not an available defense and the legal advice Stoufflet
received is erroneous, and irrelevant.
The legal advice Stoufflet received is direct first‐hand
evidenced and the prosecutor’s efforts to preclude such critical
evidence should be investigated due to the fact that this is not
some accidental harmless error but violation of his
Constitutional Rights and therefore should not be overlooked.
In order to “fit the crime”, prosecutors constructed this case to
charge Stoufflet with violations of 841(a), 843(b) in which they
claim an “Advice‐of‐Counsel” defense does not apply.
To mislead the Court, prosecutors have failed to cite one case
similar in having the “essential elements” of this case.
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5. USAGE OF DECEPTIVE CASE LAW
A quick review of the facts will provide evidence that the prosecutors
have cited case after case trying to relate the issues in this case to
past cases. The cases the prosecutors have cited have set
precedence but fail to have essential elements or similarities. None
of the cases referenced had direct legal participation and in‐depth
involvement as that in Stoufflet's case.
A re‐examination of the facts displays the prosecution’s broad
attempt in misrepresenting the core facts of this case, failing to
provide any well‐established case law. The efforts reveal the large
degree of the deception the prosecutors have engaged in.
One would assume that “Fairness” in the proceedings would apply to
both parties. In doing so, it is reasonable to believe that declarations
made by the Government can be fairly applied. In doing so, the
standard set‐forth by Government should be applied in this case:
Government's Motion, [Doc 183]
"If he is unwilling to so notify the government, then he should
be precluded from raising such a defense at trial".
But the Government did exactly this to Stoufflet by their
“sudden‐about‐face” to deny him to use his legal advice.
6. ESTOPPEL DEFENSES
A. ENTRAPMENT BY ESTOPPEL:
Jan 2001: At the request of defendant STOUFFLET, the
FDA Office of Criminal Investigations investigated the
defendant's business and found no wrongdoing.
Stoufflet then requested future guidance. August 2001:
Federal Judge Scoefeild ordered the Government to
return STOUFFLET’S business equipment so he could
continue conducting business. AUSA Stroppli had no
objection to this and agreed to return the defendant's
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business equipment. At no time was the defendant
provided any type of "Notice" that the business was
illegal; but somehow the Government has justified
Indicting the defendant for the EXACT BUSINESS the
Office of Criminal Investigations APPROVED 5 years
earlier.
B. DOCTRINE OF ESTOPPEL: prevents asserting claims,
defenses, or positions that are inconsistent with claims,
defenses, or positions that were asserted in a prior
proceeding.
As discussed in detail above in ISSUE #3 Voluntariness
of the Plea, the Government maintained the position
argued in Motion 183 throughout the proceedings but
ten days before trial, conveniently acquired a newfound
position argued in Motion 217.
The Government’s swift changing of positions resulted in
their ability to unfairly overload their arsenal and disarm
and impair defendant Stoufflet.
7. NEW EVIDENCE DEEMS VOID FOR VAGUENESS STATUES RELEVANT
The criteria needed for Void for Vagueness are appropriate here and
should be applied for the following reasons.
JOSEPH RANNAZZISI, DEPUTY ASSISTANT ADMINISTRATOR,
OFFICE OF DIVERSION CONTROL, DRUG ENFORCEMENT
ADMINSTRATION 3
“that the current laws were adopted in the 70’s & 80’s, without
the internet in mind, so rules, regs and laws for “online
pharmacies” need to be clearly defined.”
3
On June 24, 2008 : HOUSE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON CRIME, TERRORISM
AND HOMELAND SECURITY HOLDS A HEARING ON ONLINE PHARMACIES AND INTERNET DRUG ABUSE
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“The current laws used to police and web, are ambiguous and
ineffective, so even lawmakers are demanding clarity.”
The chief provisions of the very statue Stoufflet was charged of
violating, 21 USC Section 841 was amended.
8. EVIDENCE THAT SUPPORT THAT PENDING PRE‐RYAN‐HAIGHT
INTERNET PHARMACY ACT ARE INVALID
A number of quotes from the new Rule are referenced below:
The law becomes effective April 13, 2009. Thus, as of April 13,
2009, it will be illegal under federal law to ‘deliver, distribute,
or dispense a controlled substance by means of the Internet,
except as authorized [by the CSA]‘ or to aid or abet such
activity.
The Ryan Haight Act . . . makes it unlawful to “knowingly or
intentionally deliver, distribute, or dispense a controlled
substance by means of the Internet, except as authorized by
the [the Act].
Here, the Act makes it unambiguous that, except in limited
and specified circumstances, it is a per se violation of the CSA
for a practitioner to issue a prescription for a controlled
substance by means of the Internet without having conducted
at least one in‐person medical evaluation.
The Ryan Haight Act adds two new criminal offenses to the
CSA. The first new offense is set forth in 21 U.S.C. 841(h)(1),
which states: It shall be unlawful for any person to knowingly
or intentionally deliver, distribute, or dispense a controlled
substance by means of the Internet, except as authorized by
[the CSA].
The use of the words “will,” “makes,” and “new” support pre‐Ryan
Haight Act indictments are legally flawed and invalid.
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9. BREACHES OF ATTORNEY‐CLEINT PRIVILEDGE
Invasion of Defense Camp
Stoufflet was informed on April 26th 2007 that AUSA Randy Chartash
was contacting his legal counsel and discussing privileged
information.
“They have contacted one lawyer that I know of (Darren Traub)
and asked him about all sorts of privileged communications.”
The attorney‐client‐privileged was not waived at this time.
Joint Defense Agreement Breached
Co‐defendant Riggins and Sobert and their legal counsel, Gillen and
Froelich were required to formally withdraw from the Joint Defense
Agreement before meeting with the Government. There was an
active Joint Defense Agreement that required official notifications of
withdrawal. At no time were any notifications of withdrawal
provided. The Government and co‐defendants were aware of the JDA
agreement. To be official and effective, it was necessary that all six
participants execute the agreement in the presence of counsel.
10. NO EVIDENCE OF MONEY LAUNDERING –
UNFOUNDED CHARGES ADDED TO “PUFF‐UP” INDICTMENT
Prosecutors have fabricated and included 44 counts of money
laundering. Prosecutors cannot produce one single piece of evidence
that would even suggest any attempt to hide or conceal any funds at
anytime. Reputable third‐party accountants and CPA’s, in addition to
a former IRS Forensic Accountant for the Criminal Division reviewed
and directed all financial data. At no time did anyone believe or even
suspect there was ever any attempt to conceal any funds. Legal
counsel, Mr. Wilmer "Buddy" Parker, is widely acclaimed for his
expertise in the area of "money laundering". Under his watch, the
business he was advising racked up 44 counts of money laundering.
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11. MISBRANDING OF DRUGS CHARGES
The U.S. Attorney’s Office constructed 3 additional criminal counts
for the “Misbranding of Drugs”.
Counts 49, 50, & 51 allege that Stoufflet caused these drugs to be
misbranded. Stoufflet never possessed any of the drugs, therefore
he never had access to cause this act.
The “controlled substances” used in these charges were authorized
by licensed medical doctors and distributed and dispensed by
licensed pharmacies. Neither doctors nor pharmacies were
referenced in these charges.
COUNTS DATE PRESCRIPTION DRUGS DISTRIBUTED & DISPENSED
49 09/16/2003 30 Phentermine 37.5 doses distributed and dispensed to
R.A.K. in Atlanta, Georgia
50 10/01/2003 30 Phentermine 37.5 mg doses distributed and dispensed
to R.A.K. in Atlanta, Georgia
51 10/17/2003 90 Adipex P 37.5 mg doses distributed and dispensed to
R.A.K. in Atlanta, Georgia
12. CONFLICTING POSITIONS WITHIN U.S. ATTORNEYS OFFICE
In August 2006, United States Attorney David E. Nahmias issued the
following statement regarding Stoufflet's case:
“These defendants, particularly the doctors charged, allegedly
chose Internet profits over legal and ethical medical practices.”
However, prosecutors recently decided that the doctors' acts did not
merit criminal sanctions and dropped all felony charges, allowing the
doctors to plea guilty to offenses of a misdemeanor nature.
Additional confusion results from these two contradictory positions
of the prosecutors:
Ignorance of the law is no excuse / you cannot use advice of counsel
13. MISUSE OF POLICY AS LAW
DEA Policy vs LAW
DEA “Policy” as Law 2001 DEA Internet Prescribing Guidelines
15
A recent 11th circuit ruling in U.S. vs. Hernandez denied the
Government from using a 2001 DEA “policy” as Law.
In STOUFFLET’S case, the Government has repeatedly used this policy
but misrepresents it as LAW, stating that the business was illegal.
(example) STOUFFLET’S PSR specifically states:
THE INVESTIGATION (32) “The Government clarified that the
DEA circular made clear that Internet websites that provided
controlled substances on the basis of on‐line questionnaires
were illegal.”
14. WILLFUL DECEIT AND UNTRUTHFULNESS
A. “Doctor/Patient” communications: The Governments states
throughout the proceedings that the doctors had no contact with
the patients. This is false because defendant STOUFFLET paid
physicians to promptly respond to customer questions.
B. Changing of company names: The indictment states: By on or
about March 1, 2003 the Defendants moved offices and renamed
the company Virtual Wellness Networks. FALSE: the company
was not renamed, Virtual Wellness Networks, INC was a new
entity created in the development and growth of the business.
15. MISREPRESENTION OF MEDICAL BOARD “POLICY” AS STATE “LAW”
In the indictment the Government misstates medical board policy
and regulations and references them as “State Laws” in numerous
instances throughout the proceedings.
16. GOVERNMENT'S FAILURE TO INQUIRE ABOUT
CONFLICT OF INTEREST VIOLATIONS
Parker and Gillen had divided loyalties in their representation of
Stoufflet and co‐defendant Riggins and the business partnership.
Attorney Don Samuel acknowledged in his testimony during the
hearing on Stoufflet’s request to Withdraw his Guilty Plea that Parker
was on record as counsel for Stoufflet. Shortly before the indictment,
Stoufflet hired Ed Garland and Don Samuel as lead counsel, Parker
16
was co‐counsel. The conflict occurred when Parker’s business
partner, Craig Gillen began cooperating with Federal prosecutors on
the case. Parker and Gillen had guaranteed Stoufflet (in writing) that
they would not abandon him if a conflict occurred. Parker made no
attempt to discuss issues of a potential conflict, or any options to
avoid one. Parker never offered to withdraw or offered to Stoufflet
the option to waive the conflict because the conflict had already
happened and Stoufflet was informed of it "after the fact".
Ironically, this same U.S. Attorney’s Office has taken a very strong
position against these very same attorneys for a Conflict of Interest
violation in the case of the former Mayor of Atlanta a few months
prior. These were the same issues as in my case. The 11th Circuit
agreed with the U.S. Attorney’s office and had recently ruled against
Parker and Gillen.
17. PROTECTING FORMER DOJ EMPLOYEES
Three attorneys who provided legal business advice to Stoufflet are
former AUSA’s and have worked in this very same Northern District
of Georgia U.S. Attorney's office have avoided prosecution. They
have declared the business legal and fully participated in advising the
business and received $1.5 Million from what now has been declared
“ill‐gotten‐gains”.
18. ADVISING DEFENDANT IN THE ABSENCE OF COUNSEL
Although Stoufflet believed he had terminated defense counsel Don
Samuel and Ed Garland, AUSA Sommerfeld and Chartash informed
him that until the Court Docket reflected otherwise, they remained
said counsel but decided to meet with Stoufflet without counsel
present. AUSA Sommerfeld and U.S. Attorney Nahmias strongly
advised Stoufflet to remain with said counsel.
The cumulative effect of the government's repeated acts of misconduct
should preclude them from claiming this constitutes harmless error.
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INEFFECTIVE ASSISTANCE OF COUNSEL
Investigation of Former Counsel Ed Garland and Don Samuel
1. FAILURE TO INVESTIGATE PROSECUTORIAL MISCONDUCT, ETHICS
VIOLATIONS, RULE VIOLATIONS, AND PROCEDURALS ERRORS
The inadequate representation of attorneys Ed Garland and Don
Samuel are presented in eighteen separate issues provided in the
enclosed addendum. Each issue is briefly described and supported by
facts.
2. FAILURE TO REPORT OR SEEK REMEDIAL ACTION FOR THE
INADEQUACIES OF FORMER ADVSING COUNSEL
There is good reason to believe that Garland and Samuel deployed
these deceitful tactics to mask prior errors and professional
deficiencies and quickly dispose of the case.
There is good reason to believe that by Stoufflet pleading guilty,
Garland and Samuel can justify and possibly alleviate their obligation
to report the their fellow colleagues for providing legal advice that
acquired for Stoufflet a 52 Count criminal Indictment.
According to the ABA Standard 4‐5.1 Advising the Accused
(b) Defense counsel should not intentionally understate or
overstate the risks, hazards, or prospects of the case to exert
undue influence on the accused's decision as to his or her plea.
3. BREACHES OF ATTORNEY CLIENT PRIVILEGE
a. INVASION OF DEFENSE CAMP IS UNCHALLENGED
April 26th 2007 Stoufflet was informed that AUSA Randy
Chartash was contacting his legal counsel and discussing
privileged information.
A. Levitt to Shuren (Arent Fox)
[April 26 2007] 1
“It appears that the prosecutors are interviewing the
1
Levitt to Allison Shuren (Attorney fro Aren’t Fox): April 26 2007
1
various lawyers that represented Chris and the
companies in the past. They have contacted one lawyer
that I know of (Darren Traub) and asked him about all
sorts of privileged communications.”
B. Levitt to Samuel [April 26 2007] 2
“I need a couple of minutes of your time to brainstorm
a touchy subject. 1 received a call from Darren Traub,
former in‐house counsel for Stoufflet. He calJed to
report that Chartash and his minions called him
yesterday to ask questoins about issues related to his
representation of Chris centered on whether he had
ever given advice to Chris regarding the legality of this
business plan. Unfortunatedly, although giving lip
service to the privilege, he gave many answers of a
privileged nature.”
C. Legal Memo [Levitt to Samuel] 3
“LETTER TO CHARTASH RE; CONTACT WITH TRAUB.. DO
WE WANT A CHINESEWALL; DO WE WANT TO EXCLUDE
CHARTASH AS THE PROSECUTOR?”
D. Legal Memo [Levitt to Samuel] 4
“LETTER TO CHARTASH RE; CONTACT WITH TRAUB”
E. Legal Memo – Interview With Traub
[Levitt to Samuel] [June 24 2007] 5
“Apparently this was his position when he talked to the
US Attorney’s’ Office last month”
4. JOINT DEFENSE AGREEMENT BREACHED 6
Stoufflet made numerous requests to Don Samuel and Ed Garland to
subpoena a copy of the Joint Defense Agreement of his co‐
2
April 26 2007: Levitt and Samuel:‐ Subject: RE: 2 Matters
3
Levitt/Samuel: Chinese Wall [Exclude Chartash as Prosecutor]
4
Levitt/Samuel: CHECKLIST FOR WORK TO BE DONE ON STOUFFLET
5
Levitt Samuel [Traub Interview] June 24 2008
6
Copy of legally binding Joint Defense Agreement
2
defendants who had engaged discussion with the Government. The
agreement mandated provisions for withdrawal, but no withdrawal
was ever offered or provided.
Don Samuel never attempted to acquire, much less subpoena this
relevant and critical agreement. On several occasions he provides
Stoufflet false information about the Joint Defense Agreement,
intentionally misinforming him, stating it was invalid. At one point, he
told Stoufflet such an agreement did not exist.
It was through Stoufflet’s own efforts, he acquired a copy of the Joint
Defense Agreement. This agreement, executed by co‐defendants
Riggins, and Sobert, in addition to defense attorney’s Parker, Gillen,
and Froelich remains valid as of this date but has yet to be
addressed.
5. ACTUAL CONFLICT OF INTEREST VIOLATION
Attorney Don Samuel misrepresents the facts to conceal the conflict
rather than exposes it.
Stoufflet, who was represented by Parker and co‐defendant Riggins,
represented by Gillen. Parker and Gillen were 2 of 3 lawyers in the
Atlanta Office of law firm, Gillen, Cromwell, Parker, & Withers.
Parker and Gillen guaranteed Stoufflet in writing that if conflict ever
occurred, he would not be abandoned as they would take the
necessary measures to protect his interest.
Although Parker was not lead counsel for Stoufflet at the time the
conflict occurred, Stoufflet was never provided an opportunity to
waive the privilege as the conflict already occurred and Stoufflet
found out about Riggins through a 3rd party source. Parker and Gillen
had allowed Riggins to cooperate with the Government and failed to
inform, much less take any action to protect Stoufflet’s interest.
Don Samuel provides false and misleading information to Stoufflet
and states that he protected Stoufflet from any conflict from
happening.
3
Being highly regarded by many in the 11th Circuit as one of the top
criminal defense attorneys, the probability of Samuel overlooking
such a serious error is highly unlikely..
Stoufflet filed grievances with the State Bar of Georgia in October
2008 against Parker and Gillen for this conflict‐of‐interest violation
and was informed last week that his grievances hold merit and a
formal investigation was being initiated against Parker and Gillen.
State Bar of Georgia Office of General Counsel, Disciplinary Cases:
090201 & 090202.
SAFEGUARDING OF PROPERTY 7
Parker and Gillen remained partners and all Stoufflet’s case evidence
remained at the shared offices for months until Stoufflet request it
be moved.
Stoufflet had volumes of evidence relating to the conflict.
6. PROVIDING FALSE STATEMENTS AND FAILURE TO INFORM
STOUFFLET OF FAVORABLE RULING
a. On several occasions Stoufflet directly inquired about the
ruling to Samuel and he misleads Stoufflet stating that the
advice of counsel was never ruled on.
b. On August 1st 2008, in an email correspondence, Stoufflet and
Samuel discussing this very issue, Samuel stated:
“That is what we were filing motions about the week
before the scheduled trial. We were the ones fighting to
get that evidence admitted; the government was
fighting to keep the evidence out .And, of course, the
judge never decided the issue.” 8
7
August 29 2006 – Stoufflet and Dennington [Parkers secretary] email
8
Samuel Stoufflet August 1 2008 email
4
7. FAILURE TO AQUIRE FAVORBALE EVIDENCE
[TAPED RECORDED CONVERSATIONS OF JOINT DEFENSE ATTORNEY
JEROME FROELICH]
a. Co‐defendant Sobert taped numerous conversations and
played these recordings in which attorney Froelich authorizes
the conduct we were charged of violating. Sobert played these
recordings for Stoufflet and numerous others.
Stoufflet made numerous requests to Don Samuel and Ed
Garland to subpoena copies of these recordings, as they were
invaluable, providing first‐hand evidence of what the lawyers
were advising us.
Don Samuel never made any attempt to secure these critical
pieces of evidence.
8. FAILURE TO PRESENT CRITICAL EVIDENCE
a. The Government Violates Federal Law to Obtain “Controlled
Substance” For The Indictment
Title 21 § 843 PROHIBITED ACTS
(a) Unlawful acts
It shall be unlawful for any person knowingly or
intentionally—
(3) to acquire or obtain possession of a controlled
substance by misrepresentation, fraud, forgery,
deception, or subterfuge;
(4) (A) to furnish false or fraudulent material information
in, or omit any material information from, any
application, report, record, or other document required
to be made, kept, or filed under this subchapter or
subchapter II of this chapter, or
b. Failure To Present Legal Contracts With Government Agents
Legal agreements provided specific stipulations and conditions
that were binding and agreed upon by R.A.K. and K.A. in the
indictment
5
c. Failure to present Legal Contracts
The “Manner and Means” is defined in the legal agreements
that were binding during the alleged illegal acts. These
agreements should have been used to challenge the
government’s incorrect description in the indictment.
Legal agreements provided the foundation of the business and
the provisions and prerequisites of each transaction, (“Manner
and Means”). These legally binding contracts are relevant to
each Count of the Indictment.
d. Failure To Challenge Title 21 USC Section 1306.04:
Section 1306.04: that the prescriptions were “other than a
legitimate medical purpose”.
The legitimate medical purpose for the issuance of the
controlled substances was “obesity”. All prescriptions for
“controlled substances” were based upon the criteria the
physicians deemed obese; such as BMI (Body Mass Index).
The government’s claims that the “controlled substance” were
for “other than a legitimate medical purpose” are unfounded.
e. Failure To Challenge Counts 49, 50, & 51 “Misbranding of
Drugs”
Title 21 USC 353 (b) (1) “The act of dispensing a
prescription drug without the prescription of a
practitioner licensed by law to administer such drug was
an act that caused the drug to become misbranded while
held for sale.”
Stoufflet never possessed any of the “controlled
substances” and the physicians and the pharmacist
acted independently, independent, and third parity, it
Stoufflet did not have the ability to cause such an act.
6
A prescription was issued for the “controlled
substances” in Counts 49, 50, & 51, authorized by a
physician, licensed by the State Medical Board and the
DEA.
The “act of dispensing” and distributing the “controlled
substances” in Counts 49, 50, & 51 were done so by the
“filling” of a prescription issued by a pharmacist,
licensed by the State pharmacy Board and the DEA. L
Neither the doctors that authorized the prescriptions
nor the pharmacy’s that dispensed the prescription in
Counts 49, 50, & 51 are referenced.
This is an example of the prosecutor’s ability to
misconstrue and fabricate the facts. There is no
evidence that suggest this occurred.
9. FAILURE TO PRESENT NEW EVIDENCE IN WHICH “VOID FOR
VAGUENESS” IS MOST APPLICABLE
The chief provisions of the very statue Stoufflet was charged of
violating, 21 USC Section 841 was amend. The enactment of a new
law “The online Pharmacy Consumer Protection Act of 2008” aka
“The Ryan Haight Act” provided new information that was
unavailable at the time the Court initially ruled on this issue.
The Ryan Haight Act adds two new criminal offenses to the CSA. The
first new offense is set forth in 21 U.S.C. 841(h)(1), which states:
“It shall be unlawful for any person to knowingly or
intentionally deliver, distribute, or dispense a controlled
substance by means of the Internet, except as authorized by
[the CSA].”
The law becomes effective April 13, 2009. Thus, as of April 13,
2009, it will be illegal under federal law to ‘deliver, distribute,
or dispense a controlled substance by means of the Internet,
7
except as authorized [by the CSA]‘ or to aid or abet such
activity.
A good‐faith attempt to inform the Court of this new information is
reasonably justified. It should be noted that due to Don Samuel’s
expertise, he was extremely capable to present such creditable
evidence to the Court but it was simply refused when Stoufflet
requested.
CONCLUSION
The conduct of Ed Garland and Don Samuel demand answers and
accountability and swift and action.
I believe this document and supporting evidence 9 that counsels errors are
so serious that counsel was not functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment. Also in showing that counsel's
errors were so serious as to deprive me of fairness in the proceedings.
My repeated request and attempts to have counsel address these very
same issues have resulted in unnecessary delay, but refusal.
I believe this document provides fair and just reason to investigate all issues
I have provided herein and remedy the issues as required by law. 10
Respectfully Submitted,
Chris Stoufflet
9
I have volumes of supporting evidence and can be made available upon request. I have only enclosed a
few supporting documents in an effort to keep this document brief.
10
Standard 4‐8.6 Challenges to the Effectiveness of Counsel
(a) If defense counsel, after investigation, is satisfied that another defense counsel who served in an
earlier phase of the case did not provide effective assistance, he or she should not hesitate to seek relief
for the defendant on that ground.
8
Re: Stoufflet materials
Wednesday, July 30, 2008
1:45 PM
Subject
Re: Stoufflet materials
From Da vi d B. Levitt
To Shuren, Allison
Cc etg@gsllaw.com; dfs@gsllaw.com; cms@cmichaelmail.net
Sent Thurs day, April 26, 2007 10:36 AM
Allison,
I just called your office, and was told that you are travelling, and were reachable
by e-mail. I have two matters to raise with you.
2. It appears that the prosecutors are interviewing the various lawyers that
represented Chris and the companies in the past. They have contacted one lawyer
that I know of (Darren Traub) and asked him about all sorts of privileged
communications. I know that this goes without saying, but I feel compelled to say
it; Chris asserts his attorney-client privilege with regard to any conversations,
work-product generated, any and all communications that occurred between your
firm and Chris while you were representing him. If the prosecutors call, I am sure
that you will use your discretion, and honor the privilege. If there are matters that
you do not deem privileged, I would prefer to discuss those matters with you first,
then the prosecutors and a judge if necessary about the proper bounds of
questioning.
I will send you a letter memorializing this assertion of the privilege. Please call me
with any questions. If they call you, and I suspect they will, they will press for
answers, particularly with resepect to advice, or lack thereof regarding the legality
of Chris' business model.
Allison,
I am sorry to be a pest, but Judge Cooper just set the trial for May 21,2007. This is
of course a short date for a case this big. We hope it will not go on that date, but
as I am sure you know, one never knows.
So. I am in urgent need of your Stoufflet file. Please give me a call at 404 405 0919
(cell) or 404 262 2225. tolet me know when you think we could expect to receive
these materials, or if there are any problems.
David
David B. Levitt
Attorney at Law
700 Camp Street, Suite 316
New Orleans, Louisiana 70130
David B. Levitt
Attorney at Law
700 Camp Street, Suite 316
New Orleans, Louisiana 70130
tel: (504) 528-9500 fax: (504) 528-9036
dlevitt@levittllc.com
Trash [Empty] The parole people are: Jake Arbes (atty); David Botts (ally); .~.ik.~..~~I_n_tl'r_~
(atty); Mike Fleming (former parole board official who works with Mcintyre).
Search Shortcuts Let's talk about Traub anytime today.
dfs
My Photos
My Attachments
From: David B. Levitt [mailto:cj_I~\Ii!t~I~\I_i_tl.:I.I_c_:~()!!1J
Sent: Thursday, April 26, 2007 10:10 AM
To: Don Samuel
Subject: 2 matters
Don,
1.1 obviiously have a mental block with respect to the Parole names you
have given me. If they are written down in an e-mail, 1 have no excuse.
I want to get your input on how to handle this with the USATTY's
office, and the other counsel involved. I am hopping mad, although a
little less than yesterday.
David
The undersigned parties, individually and/or through their counsel stipulate and
agree as follows.
Christopher Stouffiet, Troy Sobert and Erin Riggins are principals/officers of eScripts
and LifeSpan.
warrant on the premises ofeScripts and LifeSpan. The undersigned have been served
with Federal Grand Jury subpoenas, or expect to receive subpoenas seeking handwriting
exemplars.
through the United States Attorney for the Northern District of Georgia, caused to be
executed the criminal search warrant to search the premises of the corporations located at
Suite 405, 2000 Powers Ferry Road, Marietta, Georgia. Some employees' work areas
4. In the course of the investigation, the FDA has made statements alleging
violations of the laws of the United States and that such violations may result in criminal
or civil penalties.
signatories that they deny the allegations made by FDA that violations of the laws of the
Untied States have been committed in connection with the business of eScripts and
LifeSpan and intend to vigorously defend such unfounded charges, whether brought
in response to any action which may be brought that another signatory rather than
and joint interest to present a united defense to such charges, if they are brought, which is
that they have not committed any violation, civil or criminal of the laws of the United
States or the State of Georgia in connection with their personal involvement in eScripts
and LifeSpan. In order to more effectively mount such a defense, the parties agree that it
is in their mutual interest for their counsel to share information and exchange
communications. The parties further agree that the ability of the parties and their counsel
critical to advancing the common interest of defending against the foregoing false
charges. Therefore, the parties hereto and their counsel and any other person retained on
their behalf in defense of any charges related to eScripts and LifeSpan shall keep
confidential any communications made in aid of the joint defense and that such
or their counsel.
The parties stipulate and agree that all communications, written or oral, by
between and among counsel for any purpose related to this the defense of the charges
2
ATU.IBOI 1212965. 109110101 3:30PM
related to eScripts and LifeSpan are deemed to be attorney client privileged under the so-
called joint defense or commonality of interest rule and may not be disclosed for any
The parties stipulate and agree that any communication, written or oral, between
signatories who are non-lawyers outside the presence of any attorney related to the
defense of any claims related to eScripts and LifeSpan are confidential communications
and will not be disclosed to any person not a signatory to this agreement.
The parties undertake to keep all documents which are confidential, attorney
client privileged or work product documents marked as such and segregated from non-
The parties agree to notify other signatories to this agreement in the event non-
signatories attempt by legal process or other means to obtain the documents from them.
The parties each shall vigoroUsly assert objections to any legal process to obtain
No party hereto may waive the privilege as to any document generated as part of the joint
Any party signing this agreement after the effective date of this agreement is
required to treat all communications made prior to the date he or she signed as
3
ATWBOII222965 , 1 09110101 3:30PM
Any party seeking to withdraw from this joint defense agreement may do so by
giving written notice to all other signatories or their counsel. After the date of the receipt
by all parties of notice of withdrawal from the defense agreement, any communication to
party withdrawing from this agreement is still bound by this agreement to keep all
made in aid of the joint defense were ever revealed, the parties hereto stipulate that such a
harm to all other signatories and that anyone of them may enjoin a breach through an
injunction.
1-2.0 -til'
Date of signature
Date of signature
Cj-J 0-01
Date of signature ErinRig~'ns _
. 'Pr
'.-..,;;-z/z.,o
4
ATI.UBOI 122296~i.1 09/10101 3:30PM
RE: I will be over in about 20-30 minutes - I will call when I am
pulling up
Saturday, October 04, 2008
11:07 PM
Subject
RE: I will be over in about 20-30 minutes - I will call when I am pulling up
From Stoufflet LLC | Chri s Stoufflet
To 'Ta mmy R. Dennington'
Sent Tues day, August 29, 2006 10:47 PM
You can come whenever you’re ready. Just let me know in advance because I’ve had to
offload the servers from the cart they’ve been sitting on for days as the hand truck was
needed elsewhere. You’ll likely have to park in the loading dock now as the hand truck
that’s available will only hold one at a time and now this will take three trips.
Tammy R. Dennington
Legal Assistant
Gillen Parker & Withers LLC
One Securities Centre, Suite 1050
3490 Piedmont Road, NE
Atlanta, GA 30305
(404) 842-9700 - Telephone
(404) 842-9750 - Facsimile
tdennington@gcpwlaw.com - e-mail
The information contained in this e-mail transmission is intended for the use of the
designated recipients named above. This message may be an attorney-client
communication and as such is privileged and confidential. If the reader of this
message is not the intended recipient or agent responsible for delivering it to the
intended recipient, you are hereby notified that you have received this document in
error and that any review, dissemination or copying of this message is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone or return e-mail and return the original message to
us. Thank you.
-----Original Message-----
From: Stoufflet LLC | Chris Stoufflet [mailto:cstoufflet@stouffletllc.com]
Sent: Tuesday, August 29, 2006 11:07 AM
To: 'Tammy R. Dennington'
Cc: 'Buddy Parker'
Subject: RE: I will be over in about 20-30 minutes - I will call when I am pulling up
Thanks,
-Chris
Ms. Tammy,
I can come by after 11 to pick up the servers and help you look for the book. I gave it to Erin to bring
with the sample supplies from Pharmacia a while back and he did.
Once again, it is important that we find it. I think it would be a good idea to have an inventory list of
everything stored at your office, since we have had issues looking for things in the past and now with
what Mr. Gillen and Erin did and how they handled things, really makes me uncomfortable. I appreciate
your understanding.
Thank you,
-Chris Stoufflet
Ms. Tammy,
I am almost positive it is blue and a huge 3 ring binder. It was taken to the office when Erin took the
samples from Pharmacia. If it not over there, we have a big problem.
Sorry, I didn’t know you were leaving at 4;30. I can be the early in the morning to pick up the servers
and help look for the binder. Do you have an inventory of everything that we have there?
Thank you,
-Chris
I looked in the boxes we have stored for you and there is no blue notebook.
Tammy R. Dennington
Legal Assistant
Gillen Parker & Withers LLC
One Securities Centre, Suite 1050
3490 Piedmont Road, NE
Atlanta, GA 30305
(404) 842-9700 - Telephone
(404) 842-9750 - Facsimile
tdennington@gcpwlaw.com - e-mail
The information contained in this e-mail transmission is intended for the use of
the designated recipients named above. This message may be an attorney-client
communication and as such is privileged and confidential. If the reader of this
-----Original Message-----
From: Stoufflet LLC | Chris Stoufflet [mailto:cstoufflet@stouffletllc.com]
Sent: Monday, August 28, 2006 4:30 PM
To: 'Tammy R. Dennington'
Subject: RE: I will be over in about 20-30 minutes - I will call when I am pulling
up
-Chris
Tammy R. Dennington
Legal Assistant
Gillen Parker & Withers LLC
One Securities Centre, Suite 1050
3490 Piedmont Road, NE
Atlanta, GA 30305
(404) 842-9700 - Telephone
(404) 842-9750 - Facsimile
tdennington@gcpwlaw.com - e-mail
-----Original Message-----
From: Stoufflet LLC | Chris Stoufflet [mailto:cstoufflet@stouffletllc.com]
Sent: Monday, August 28, 2006 4:23 PM
To: tdennington@gcpwlaw.com