Case 1:06-cr-00337-CC-JFK Document 274 Filed 08/19/2008 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA :

: CRIMINAL INDICTMENT
v. :
: NO. 1:06-CR-337-5-6-7-CC
STEVEN DANIEL HOLLIS, M.D., :
AHSAN U. RASHID, M.D., and :
ANDRE SMITH, M.D. :

UNITED STATES’S MOTION IN LIMINE

TO EXCLUDE AS IRRELEVANT AND UNFAIRLY PREJUDICIAL
TESTIMONY OF PAUL SOUTHERN AND TOM BEVER

Comes now the United States of America, by David E. Nahmias, United States

Attorney, and Randy S. Chartash and Lawrence R. Sommerfeld, Assistant United

States Attorneys for the Northern District of Georgia, and hereby respectfully requests

that this Court issue an in limine order prohibiting the testimony of Paul Southern and

Tom Bever.

I. Background

Defendants are medical doctors charged with conspiracy to violate the

Controlled Substances Act, 18 U.S.C § 846. (Indictment [Doc 1], Count One.)

Defendant Smith is also charged with two substantive counts of distributing controlled

substances. (Indictment [Doc 1], Counts Two and Four.) Among other things, the
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Indictment alleges that the Defendant doctors conspired to provide customers

prescriptions drugs, including controlled substances, through a company called

eScripts. Id. Through eScripts, customers requested drugs, including controlled

substances, which they were promptly delivered based solely on an on-line

questionnaire. Id. The doctors who distributed the controlled substances did not meet

nor speak with the customers, nor was customer information confirmed, other than the

validity of the customers' payment information. Id. Put simply, the Indictment alleges

that the Defendants each were part of a scheme to circumvent the drug laws of the

United States, enabling customers to order controlled substances and other

prescription drugs without a legitimate medical purpose and outside of the usual

course of professional practice. Id., ¶¶ 18-38.

II. Discussion

A. Special Agent Paul Southern

Counsel for Defendant Hollis notified the government by letter that it intends

to call Special Agent Paul Southern to testify. Paul Southern was an agent with the

Office of Criminal Investigation, Food and Drug Administration. He was the original

case agent that gave rise to this investigation. He no longer works for the Food and

Drug Administration. The government believes based upon information from counsel

for defendant Hollis that they believe that, if called to testify, SA Southern would

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testify that in or around January 2001 he told Chris Stoufflet, the principal owner of

eScripts, that the business model of prescribing drugs over the Internet was not illegal.

The government believes that such testimony is irrelevant to the issues in this case.

Unless someone conveyed the purported statements of SA Southern to defendant

Hollis, then the conversations that SA Southern did or did not have with Chris

Stoufflet are immaterial. Further, the individual who had the conversation with

defendant Hollis is the one who should testify about this matter.

Moreover, clarifications to the law subsequent to SA Southern’s purported

statements in January 2001 render SA Southern’s testimony irrelevant. Whatever SA

Southern’s personal beliefs in January 2001, the DEA issued a circular in April 2001

specifically stating that prescribing controlled substances over the Internet on the basis

of an online questionnaire was illegal. Further, a Georgia amendment effective

February 14, 2002, made clear that prescribing over the Internet without a face-to-face

examination, outside of certain exceptions which do not apply here, is unprofessional

conduct, and therefore illegal. Both the April 2001 DEA Circular and the February

2002 Georgia rule were publicly available and were admitted into evidence in the

March 2008 trial against Dr. Smith; the United States expects such evidence to be

admitted into evidence during the instant trial as well. Accordingly, SA Southern’s

personal opinion regarding legality should be excluded because of intervening

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clarification of the law, even if the defense could show SA Southern’s opinions were

communicated to the Defendant. SA Southern’s testimony is irrelevant, and any

probative value is substantially outweighed by the risk of unfairly prejudice, such as

undue delay and confusion of issues before the jury.

Finally, as discussed further below, Defendant Hollis’s belief concerning the

legality or the propriety of internet prescribing of controlled substances is not a proper

defense, and evidence of his good faith beliefs, through mistake of law, or any other

rubric, is irrelevant to the charges and should be excluded. See Fed. R. Evid. 401,

402, 403.

B. Tom Bever

In Defendant Hollis’s Motion to Take Trial Depositions1, defendant Hollis has

given the parties and the Court a summary, albeit cursory, as to what Tom Bever

would say, if examined. Defendant Hollis asserts in his Motion that:

3.

Atty Bever previously provided legal representation

of Dr. Hollis, while Dr. Hollis was employed by e-Scripts
during May and June 2002.

1
Defendant Hollis’s Motion to Take Trial Deposition has been withdrawn because the
proposed deponent, Tom Bever, is now available to testify at trial.

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4.

Atty Bever’s testimony is relevant and material to

Dr. Hollis’ contention that his actions during his
association with e-Scripts, did not violate the law as he is
charged in the indictment. Dr. Hollis asserts he did not
possess the criminal intent to violate the law.

Defendant Hollis’s Motion at 2.

As an initial matter, Tom Bever’s proffered testimony does not amount to an

advice of counsel defense. According to defendant Hollis’s motion, Bever advised

defendant Hollis from May to June 2002. According to the Indictment, defendant

Hollis’s illegal conduct started in August 2001 some ten months before the advice

from Tom Bever.2 Thus, Tom Bever’s advice does not exculpate defendant Hollis

because defendant Hollis did not seek the advice until well after he began prescribing

controlled substances over the Internet without a face-to-face examination. Upon

2
The Indictment at to defendant Hollis states:

23. Defendant STEVEN DANIEL HOLLIS, M.D., was a physician

licensed in the State of Georgia. Defendant HOLLIS authorized
his name to appear on vials of drugs distributed and dispensed by
defendants to customers of the Internet businesses. From in or
about August 2001 through in or about August 2002, defendant
HOLLIS authorized the distribution and dispensing of at least
43,390 prescriptions, including at least 639 prescriptions of
Schedule III substances and at least 26,000 prescriptions of
Schedule IV substances, which defendants sold through their
Internet application process.

Indictment ¶ 23. The government believes the fact that defendant Hollis started prescribing
controlled substances in or around August 2001 is uncontroverted.

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information and belief, Defendant Hollis stopped prescribing through eScripts shortly

after receiving Tom Bever’s advice, reinforcing the illegality of the prior conduct.

Accordingly, Tom Bever’s testimony is not relevant to any element of the offense.

Further, any probative value of such testimony is substantially outweighed by the risk

of unfair prejudice, such as delay and confusion of issues before the jury.

Not only does the proffered testimony not constitute an advice of counsel

defense, but such a defense is not available in this case. Subjective good faith

defenses, such as the advice of counsel, only apply to crimes requiring a specific

intent to break the law. As conspiracy to violate the controlled substance act is a

general intent crime, such defenses are irrelevant as a matter of law.

Federal Rule of Evidence 402 provides that evidence which is not relevant is

not admissible. Evidence that neither negates an element of the charges against a

defendant nor establishes a defense is not relevant. Defendant Hollis is not entitled to

present evidence relating to his erroneous belief that his conduct was legal because the

charged offenses require only a “knowing” scienter, not a “willful” one. The

government is required to show only that defendants knew they were “in fact

performing an act, whether or not [they knew] that the act has been criminalized by

statute.” United States v. Lynch, 233 F.3d 1139, 1141 (9th Cir. 2000). See also United

States v. Linares, 367 F.3d 941, 948 (D.C.Cir. 2004)(possession of marijuana with

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intent to distribute is a general intent offense). See United States v. Fahey, 411 F.2d

1213 (9th Cir. 1969)(inability to form specific intent has never been a defense to

general intent crime); United States v. Cain, 130 F.3d 381, 384 (9th Cir. 1997)

(district court properly gave instruction in possession of cocaine with intent to

distribute case that government need not prove the defendant knew his conduct was

illegal).

In United States v. Dohan, 508 F.3d 989 (11th Cir. 2007), the Eleventh Circuit

held that “[t]he district court correctly instructed the jury, notwithstanding the pattern

jury instructions, that the appropriate mental state for convicting under §1956(h)

[conspiracy to money launder] was merely ‘knowing and voluntarily,’ as we have held

in cases post-dating the adoption of the pattern instructions.” Id. at 993 (citing United

States v. Kennard, 472 F.3d 851, 856 (11th Cir. 2006) (“knowingly and voluntarily

participated in the agreement”); United States v. Silvestri, 409 F.3d 1311, 1328 (11th

Cir.2005) (“knowingly and voluntarily joined or participated in the conspiracy”).3

The money laundering conspiracy statute, 18 U.S.C. § 1956(h), and the drug

conspiracy statute, 21 U.S.C. § 846, are virtually identical in wording. Therefore,

under the holding in Dohan there is no principled basis to distinguish the two and they

3
In Dohan, the Eleventh Circuit explicitly rejected the Pattern Jury Instruction and held
“Pattern Jury Instruction 70.5 [Money Laundering Conspiracy] places a higher burden on the
government for proving an offense under 18 U.S.C. § 1956(h) than does the statute, and should
not be used.” 508 F.3d at 993 (emphasis added).

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should be construed in the same way.

Moreover, the United States Supreme Court has recognized in construing the

federal, general conspiracy statute (18 U.S.C. § 371), that a defendant does not need

to know his conduct violates federal law to be guilty of a conspiracy. Section 371

makes it unlawful to “conspire ... to commit any offense against the United States.”

The Supreme Court held in United States v. Feola, 420 U.S. 671, 687 (1975) that:

A natural reading of these words would be that since one

can violate a criminal statute simply by engaging in the
forbidden conduct, a conspiracy to commit that offense is
nothing more than an agreement to engage in the prohibited
conduct.

Id. at 687. The drug conspiracy statute, 21 U.S.C. § 846, and the money laundering

conspiracy statute, 18 U.S.C. § 1956(h), are substantially the same as Section 371, and

thus, the holding in Feola applies here. See also United States v. Ansaldi, 372 F.3d

118, 128 (2nd Cir. 2004)(upholding district court's refusal to give good faith

instruction to § 846 conspiracy charge, stating “knowledge of, or intent to violate the

law is simply not an element of this offense”); United States v. Baker, 63 F.3d 1478,

1493 (9th Cir. 1995) (recognizing in the context of a conspiracy charge under RICO

and the Contraband Cigarette Trafficking Act that “[e]stablishing a defendant's guilt

of conspiracy to commit a substantive crime requires proof of mens rea essential for

conviction of the substantive offense itself ... No greater or different intent is

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necessary.”)

The position is consistent with this Court’s ruling on March 07, 2008. This

Court denied the Government’s Motion In Limine and held, citing United States v.

Cameron, 907 F.2d 1051 (1990), that the specific intent that is at issue in this case is

the specific intent to distribute controlled substances. Order at 3. The Government

acknowledges that it must prove that defendant Hollis specifically intended to

distribute controlled substances. However, the government need not prove

willfulness, that is, that Defendant Hollis specifically intended to violate the law.

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III. Conclusion

For the foregoing reasons, Defendants should be precluded from calling to

testify Tom Bever and Special Agent Paul Southern. The United States respectfully

requests that the Defendants be precluded from referencing or making argument

concerning these witnesses’ testimony prior to the Court ruling on this motion.

Respectfully submitted,

DAVID E. NAHMIAS
UNITED STATES ATTORNEY

/s/RANDY S. CHARTASH
ASSISTANT UNITED STATES ATTORNEY
Georgia Bar No. 121760

/s/LAWRENCE R. SOMMERFELD
ASSISTANT UNITED STATES ATTORNEY
Georgia Bar No. 666936

75 Spring Street, S.W. , Suite 600

Atlanta, Georgia 30303
Telephone (404) 581-6000
Facsimile (404) 581-6181

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1B

This is to certify that the foregoing document was formatted in accordance with

Local Rule 5.1B in Times New Roman font, 14 point type.

CERTIFICATE OF SERVICE

This is to certify that I have this day served upon counsel of record in this case

a copy of the foregoing document by filing it with the Case Management/Electronic

Case Filing system of the United States District Court for the Northern District of

Georgia which automatically serves the parties of record electronically.

This 19th day of August, 2008.

/s/
RANDY S. CHARTASH
ASSISTANT U.S. ATTORNEY

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