Case 1:08-cr-00082-CC Document 25 Filed 05/19/2009 Page 1 of 15

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA :

: CRIMINAL CASE NOS.
v. :
: 1:08-CR-082-1-CC
CHRISTOPHER STOUFFLET : 1:06-CR-337-1-CC

GOVERNMENT’S RESPONSE TO DEFENDANT’S

AMENDED MOTION TO WITHDRAW GUILTY PLEA

The United States, by its counsel, David E. Nahmias, United States Attorney

for the Northern District of Georgia, and Randy S. Chartash and Lawrence R.

Sommerfeld, Assistant United States Attorneys, files this Response to Defendant's

Amended Motion to Withdraw Guilty Plea.

I. Background

On February 20, 2009, almost a year following his March 4, 2008 guilty plea

made under oath before this Court, Defendant filed a Motion to Withdraw Guilty Plea

[Doc 16]. As directed by the Court, on March 20, 2009, the United States filed a

response to the Defendant's Motion [Doc 19]. On April 15, 2009, Defendant filed an

Amended Motion to Withdraw Guilty Plea [Doc 22], and on May 14, 2009,

Defendant filed a Correction of Previous Legal Citation [Doc 24]. The United States
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now files this Response to Defendant's Amended Motion to Withdraw Guilty Plea.

The United States hereby incorporates its previously filed Response to Defendant's

Motion to Withdraw Guilty Plea [Doc 19]. This filing is to respond to the additional

material present in Defendant's Amended Motion [Doc 22].

II. Discussion

A. Defendant’s Amended Motion Fails to Provide Any Legal Basis To

Support Withdrawal of Defendant's Guilty Plea.

As thoroughly discussed in the United States's Response to Defendant's Motion

to Withdraw Guilty Plea [Doc 19], the Defendant's original Motion to Withdraw

Guilty Plea failed to establish any legal basis supporting withdrawal of Defendant's

guilty plea, particularly almost a year following the guilty's plea acceptance by this

Court. In his original motion, Defendant conceded that "close assistance of counsel

was available" for his guilty plea. [Doc 16] at 9. Rather than any discussion of the

legal standard, the Defendant made conclusory statements that his plea "was not

knowing and voluntary" and that he felt "numb" and did not appreciate his actions,

[Doc 16] at 8, all of which are unsupported and run contrary to the record in this case.

See [Doc 19] at 10-15; Tr. of Guilty Plea Proceedings, March 4, 2008 (“Tr.”), at 21,

24.; [Doc 5] at 18-19. Put simply, Defendant's original motion failed to sufficiently

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set forth a legal basis supporting withdrawal of his guilty plea.

The Government's Response, in contrast, set forth the Eleventh Circuit standard

for withdrawal of pleas and showed that based on the controlling law, Defendant's

motion must be denied. [Doc 19] at 6-21. In particular, the Eleventh Circuit places the

burden on the Defendant, and states that the District Court should consider: "(1)

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

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

the government would be prejudiced if the defendant were allowed to withdraw his

plea." [Doc 19] at 6 (quoting United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.

2006) (quotation omitted)). The United States analyzed each of the four factors, and

demonstrated that each supported denial of the Defendant's Motion. [Doc 19] at 6-21.

Indeed, Defendant conceded the first factor, that close assistance of counsel was

available to him, [Doc 16] at 9, and provided no serious discussion of the other

factors.

Surprisingly, Defendant's amended motion does not even attempt to address

any of the four factors set forth by the Eleventh Circuit. If the discussion of the

factors is almost non-existent in the Defendant's original motion, Defendant's

amended motion is devoid of any mention of the factors at all. After the United

States's thorough analysis demonstrating the complete lack of legal basis to

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Defendant's request, the silence in Defendant's amended motion is deafening. Given

that it is Defendant's burden to establish a basis for withdrawal of his plea, United

States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006), by not even attempting to

analyze any of the Eleventh Circuit factors, the defense essentially concedes the

point: There is no legal basis supporting withdrawal of the Defendant's guilty plea.

Defendant's Motion must be denied.

B. Defendant Fails to Set Forth a Substantial Claim of Ineffective

Assistance of Counsel; The Claim Is Untimely In Any Event.

Perhaps recognizing that his motion was doomed to failure after the United

States demonstrated that each of the Eleventh Circuit factors counseled for denial of

his motion, Defendant's amended motion for the first time alleges ineffective

assistance of counsel by lawyers he calls “wonderful”, Edward T.M. Garland and

Donald F. Samuel. [Doc 22] ¶¶ 2-3 at 2-3. Defendant's ineffective assistance claim

is actually nothing new, however. Essentially, his ineffective assistance claim is

merely another attempt to present an advice of counsel defense that Defendant

strategically chose to abandon in favor of a negotiated plea. The Defendant

represents that his counsel advised him that the charges against him precluded an

advice of counsel defense. The Defendant assumes that this advice was wrong, and

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then makes the gargantuan leap that because his attorneys gave him advice he now

believes is incorrect, that his counsel were constitutionally ineffective. Defendant's

claim fails for several reasons.

As a threshold matter, the Defendant made a strategic decision while the

motion was pending to accept the favorable plea agreement rather than press his

advice of counsel defense. He admitted as much during the guilty plea hearing when

he agreed with counsel Ed Garland’s discussion of the defense’s strategic decision

making. [Doc 19] at 22; Tr. at 29-30. Defendant tries to manipulate the system by

first entering a guilty plea while a motion is pending, and then trying to withdraw it

after what he deems a favorable court decision. Moreover, as discussed in the United

States's original response, Defendant had ample opportunity after the Court's ruling

to move to withdraw his plea in time for trial with co-defendants. [Doc 19] at 16-21.

Instead, Defendant manipulated the system further, lying in wait while two separate

juries were selected and one case was tried, and reviewing the terms of his PSR,

before moving the Court to withdraw his guilty plea almost a year after entry of the

Court's order on which he supposedly bases his request. Id. This Court should not

countenance such gamesmanship.

Defendant’s strategic choice was understandable. As discussed in the United

States’s Response, an advice of counsel defense is unavailable with respect to several

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of the charged offenses. [Doc 19] at 24-27. As the Eleventh Circuit has recently held,

the Controlled Substances Act violations under which the Defendant was indicted do

not require “willfulness”, or intent to violate the law; therefore, advice of counsel

regarding lawfulness is irrelevant. Id.; United States v. Green, 296 Fed. Appx. 811

(11th Cir. 2008); United States v. DeCarty, 300 Fed. Appx. 820 (11th Cir. 2008).1

Moreover, the Defendant and his company were advised their conduct may be

illegal, and therefore the advice of counsel defense, even if legally available, would

not apply to this case. [Doc 19] at 27; PSR ¶¶ 29, 32. As merely one example, the

Defendant received the following letter, addressed to his company counsel from the

Arent Fox law firm, dated June 5, 2002:

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Desperate to avoid the ramifications of controlling case law, which
dooms his advice of counsel defense, the Defendant trots out a new theory – that
he was charged as an aider and abetter.

Defendant, however, was charged and admitted to being not just a principal,
but the leading participant in the criminal enterprise. As set forth in the PSR,
without objection, the Defendant was the majority owner and operator of the
criminal corporation, who had control over the corporation and the employees.
PSR ¶ 17. See also, PSR ¶¶ 18-19. The Defendant’s company grossed
approximately $75 million in criminal proceeds. PSR ¶ 30. The Defendant himself
amassed over $4 million, twice as much as the other principals of the company,
and almost 40 times as much as the defendant doctors the Defendant hired so that
the enterprise could abuse their DEA numbers and medical licenses. See PSR ¶¶
30 Defendant stipulated that he was the leader/organizer of the operation. [Doc 5]
¶ 8(e). Defendant does not object to any of these provisions of the PSR, and
admits even in his Motion to Withdraw Guilty Plea that the facts presented by the
United States are correct. [Doc 16] at 7.

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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 criminal
sanctions, 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.

(Attachment One, Letter to eScripts from Arent, Fox, June 5, 2002.) The Defendant

chose to continue operating his illegal business for another eighteen months

following this explicit advice by counsel that the company and its principals risked

criminal sanction, with a greater risk the longer they continued to operate. This piece

of correspondence alone puts the lie to Defendant’s supposed advice of counsel

defense. See [Doc 16] at 3 (“[Defendant] never received any letters from his lawyers

that his actions were illegal.”)

Despite Defendant’s assumption that the Court ruled in his favor, the Court’s

Order does not support Defendant’s claim. The Court’s ruling, which was solely with

regard to a doctor-defendant’s “good faith” defense, affirms that the Controlled

Substance Act violations require an “intent to distribute”. Such a holding is irrelevant

to this non-doctor Defendant, and to whether a substantive Controlled Substances Act

charge requires wilfullness to violate the law. See [Doc 19] at 26-27.

Finally, even if one were to credit Defendant’s assumption that he received

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erroneous legal advice, the Defendant does not come close to establishing an

ineffective assistance of counsel claim. To prevail on an ineffective assistance claim,

a petitioner must prove both incompetence and prejudice. Strickland v. Washington,

466 U.S. 668, 697, 104 S. Ct. 2052 (1984); see also Chandler v. United States, 218

F.3d 1305, 1312 (11th Cir. 2000). Specifically, a petitioner must show that "(1). . .

counsel's representation fell below an objective standard of reasonableness

[incompetence], and (2). . . there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different

[prejudice]." Chandler, 218 F.3d at 1312-13. "[T]here is no reason for a court

deciding an ineffective assistance claim . . . to address both components of the inquiry

if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697;

Chandler, 218 F.3d at 1312.

The defendant bears the burden of proving by a preponderance of competent

evidence that the attorney's performance was unreasonable. Chandler, 218 F.3d at

1313. The standard for evaluating counsel's performance is "‘reasonableness under

prevailing professional norms.'" Id. (quoting Strickland v. Washington, 466 U.S. 668

(1984)). To prove ineffectiveness, a petitioner must show that the attorney's

representation "fell outside the wide range of professionally competent assistance."

Id. at 1314 (internal quotation marks omitted).

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When evaluating an attorney's performance, the Court must be highly

deferential. Id. The Court "must avoid second-guessing counsel's performance." Id.

Instead, the Court must "indulge [the] strong presumption that counsel's performance

was reasonable and that counsel made all significant decisions in the exercise of

reasonable professional judgment." Id. (internal quotation marks omitted) (alteration

in original). Thus, "counsel cannot be adjudged incompetent for performing in a

particular way in a case, as long as the approach taken ‘might be considered sound

trial strategy.'" Id. (quoting Darden v. Wainwright, 477 U.S. 168 (1986)). "[B]ecause

counsel's conduct is presumed reasonable, for a petitioner to show that the conduct

was unreasonable, a petitioner must establish that no competent counsel would have

taken the action that his counsel did take." Id. at 1315. Moreover, when reviewing

counsel's performance, the Court, "must evaluate the reasonableness of counsel's

performance from counsel's perspective at the time," not with the distortion of

hindsight. Id. at 1316. "The reasonableness of a counsel's performance is an objective

inquiry." Id. at 1315.

Here, the Defendant asserts that his attorneys, Ed Garland and Don Samuel,

advised him that the advice of counsel defense would be unavailable with respect to

certain charges against him. Defendant claims this advice was later deemed incorrect,

and therefore he suffered ineffective assistance of counsel. However, giving legal

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advice regarding an unsettled issue that later turns out to be incorrect is not

ineffective assistance of counsel. Black v. United States, 373 F.3d 1140, 1144 (11th

Cir. 2004 (“If the legal principle at issue is unsettled, however, counsel will not have

rendered deficient performance for an error in judgment.”) (citing Smith v. Singletary,

170 F.3d 1051, 1054 (11th Cir. 1999)); Cooks v. United States, 461 F.2d 530, 532

(5th Cir. 1972) (“[C]ounsel's inability to foresee future pronouncements [by the

courts] ... does not render counsel's representation ineffective.... Clairvoyance is not

a required attribute of effective representation.”); Pitts v. Cook, 923 F.2d 1568, 1573

(11th Cir. 1991). For Defendant to establish ineffective assistance based on his

counsel’s legal assessment the Defendant must show that his counsel was ignorant of

a well-defined legal principle rising to constitutional error, and not simply an error

in judgment. Black, 373 F.3d at 1144; Smith, 170 F.3d at 1051. Thus, if a reasonable

attorney in Garland and Samuel’s position could have concluded that an advice of

counsel defense would not apply, their performance will not be deemed deficient. See

Black, 373 F.3d at 1144; Smith, 170 F.3d at 1054. Defendant does not come close to

showing ignorance of a well-defined legal principle; to the contrary, the United States

submits that the advice Defendant suggests he received from Garland and Samuel was

and remains correct.

Furthermore, the Supreme Court has stated a preference for hearing ineffective

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assistance claims on petitions for collateral relief, where the record may be more

completely developed. See Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690

(2003). Accordingly, Defendant’s ineffective assistance claim is untimely.

C. The Court Should Not Follow the Defense Requests to Nullify the
Law.

Perhaps recognizing his arguments lack merit, the defense abandons any

pretense of following the law. Towards the end of his Amended Motion, Defendant

urges the Court, "regardless of whether [the] charges are specific or general intent

crimes, Defendant should nevertheless be permitted to raise these defenses." [Doc 22]

¶ 7 at 5. The law clearly requires otherwise, properly excluding the advice of counsel

defense where intent to violate the law is not an element of the charged offense. See

United States v. Powell, 512 F.2d 1249, 1251 (8th Cir. 1975); United States v. Dyer,

750 F. Supp. 1278, 1293 (E.D. Va. 1990); United States v. Soares, 998 F.2d 671, 673-

74 (9th Cir. 1993); United States v. Bristol, 473 F.2d 439, 443 (5th Cir. 1973).

The United States’s Response to Defendant’s Motion to Withdraw Guilty Plea

explained that, “Defendant seeks to withdraw his plea . . . to air his lament that he

spent a fortune on advice from numerous attorneys, and that he therefore should be

absolved from criminal liability.” [Doc 19] at 21. Defendant’s Amended Motion

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confirms this. The defense is reduced to arguing that the Defendant should be

permitted to argue an advice of counsel defense not because it is legally applicable,

but because the Defendant "spent an exorbitant amount of money for lawyers who

advised him on the legalities of his company." [Doc 22] ¶ 7 at 5.

Lastly, the defense tries to shoehorn an entirely separate case from another

district. Without so much as a discussion of the facts of the case, the Defense cites

the Hernandez case from the Southern District of Florida, and cavalierly declares the

case “on all fours with this one.” [Doc 22] ¶ 10 at 6 (citing United States v.

Hernandez, Case No. 08-60027.) The reality is that Hernandez was not before the

Court on a motion to withdraw guilty plea, and so the case presented an entirely

different posture and legal standard than the case at bar. Further, the Court in

Hernandez did not address the availability of an advice of counsel defense with

respect to substantive charges under 21 U.S.C. § 841, such as those with which the

Defendant is charged here. Moreover, assuming the advice of counsel defense were

applicable, the defendants in Hernandez received starkly different legal advice than

the Defendant here. On information and belief, in Hernandez, the defendants sought

advice from one attorney, who has since been disbarred, who explicitly advised them

their conduct was legal. In contrast, the defendants here were told of the substantial

risk of criminal sanction. See [Doc 19] at 27; PSR ¶¶ 29, 32. See, e.g., Attachment

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One. The defendants here took specific action to avoid enforcement. See, e.g., PSR

¶ 36. In summary, without delving more specifically into Court rulings and the

specific factual record, Defendant cannot bear his burden to withdraw his guilty plea

by mere citation to Hernandez.

(remainder of page intentionally left blank)

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III. Conclusion

Because Defendant’s Amended Motion fails to even attempt to address the four

factors of the analysis provided by the Eleventh Circuit, Defendant has not met his

burden of establishing a fair and just reason to withdraw his guilty plea. Defendant’s

Motion to Withdraw Guilty Plea must be denied.

Dated: May 19, 2009.

Respectfully submitted,

DAVID E. NAHMIAS
UNITED STATES ATTORNEY

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

/s/LAWRENCE R. SOMMERFELD
ASSISTANT U.S. ATTORNEY
Georgia Bar No. 666936

600 Richard B. Russell Building

75 Spring Street, S.W.
Atlanta, GA 30303
Telephone (404) 581-6000
Facsimile (404) 581-6181

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1B

The foregoing document was formatted in accordance with Local Rule 5.1B

in Times New Roman, 14 point type.

CERTIFICATE OF SERVICE

Today I filed a copy of the foregoing document electronically with the

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

District of Georgia, which automatically serves the parties and counsel of record.

Dated: May 19, 2009

/s/LAWRENCE R. SOMMERFELD
ASSISTANT U.S. ATTORNEY

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