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Rule 11(d)(2) moves this Court to withdraw his guilty plea. In support thereof, Defendant
1.
Subsequent to this motion, Defendant also moved this Honorable Court to allow him to
withdraw from the case. [Doc. 18]. However, prior to the hearing to withdraw from the
case, Counsel and Defendant met and reconciled their differences after Counsel agreed to
amend the Motion to Withdraw Guilty Plea to include among other claims ineffective
previously filed motion and adds the following issues to the instant motion. Counsel
orally apprised both the Government and the Honorable Court, that an amendment would
be filed.
Case 1:08-cr-00082-CC Document 22 Filed 04/15/2009 Page 2 of 8
2.
Before Defendant pleaded guilty, he was insistent about his innocence and
proceeding to trial. As discussed in the previously filed motion, Defendant hired many
reputable lawyers to review any and all pertinent rules and regulations as it would apply
to his business. Defendant received numerous opinion letters from these lawyers
regarding his business. Prior to trial, the Government filed a motion in limine to prevent
Defendant from raising his defenses of advice of counsel and good faith because he was
charged with inter alia general intent crimes. [Doc. 217]. According to Defendant, his
lawyers, Edward T.M. Garland and Donald F. Samuel, both wonderful lawyers, advised
him that his affirmative defenses could not be raised as a defense to Counts Two through
Four, or Counts Forty-Nine through Fifty-One because they were general intent crimes.
But his lawyers did believe he could raise these defenses for the remaining counts of the
indictment which included conspiracy and money laundering. Therefore, based on his
attorney’s opinion, Defendant believed he had no choice but to plead guilty since his
defense was being removed. This advice from his defense lawyers was erroneous and
caused Defendant to enter a guilty plea. Defendant, under the law, would have been
3.
Defendant moves to vacate his plea based on the grounds of ineffective assistance
show: (1) his counsel's performance fell below an objective standard of reasonable
professional assistance; and (2) there is a reasonable probability that the outcome would
Case 1:08-cr-00082-CC Document 22 Filed 04/15/2009 Page 3 of 8
have been different but for his lawyer's unprofessional errors. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984).
4.
of 21 U.S.C. § 841(a)(1), 841(b)(2) and CFR Section 1306.04 and 18 U.S.C. § 2 (Aiding
and Abetting), and Aiding and Abetting the Misbranding of Drugs in Counts Forty-Nine
through Fifty-One. These are the counts where an advice of counsel defense was in
dispute, as stated above. Commonly, an advice of counsel defense cannot be raised if one
is indicted for a general intent crime. Since the Government believed that the charges,
other than the money laundering counts, were general intent crimes, they moved this
Honorable Court to deny the defense to right to raise an affirmative defense of advice of
crime, and Defendant was charged as an aider and abettor in all the other counts.
Furthermore, Defense Counsel misinterpreted the same issue overlooking the fact that if
Defendant was indicted as an aider and abettor, this increases the mens rea, and he could
5.
The Government sought to prove that Defendant was not the actual distributor,
but was an aider and abettor since he did not personally conduct any acts of distribution.
1
The original indictment is 1:06-CR-337. When Defendant agreed to enter a guilty plea, the Government
filed an information under case number 1;08-CR-00082. However, Defendant was advised to plead guilty
based on the indictment not the information that was subsequently filed.
Case 1:08-cr-00082-CC Document 22 Filed 04/15/2009 Page 4 of 8
Without dispute, the doctors wrote the prescriptions and sent them to the pharmacies to
be distributed and Defendant himself did not actually distribute the drugs unlike a typical
drug distribution case. If the case proceeded to trial, this Honorable Court would have
been required by law to instruct the jury on the principles of aiding and abetting pursuant
to 18 U.S.C. § 2. According to this section of the United States Code, a person can only
be found culpable as an aider and abettor if the defendant “willfully causes” an act to be
done. Willfully is defined as “an act committed voluntarily and purposely, with the
specific intent to do something the law forbids; that is with bad purpose either to disobey
or disregard the law.” See Pattern Instruction 9.1 of the Eleventh Circuit Pattern Jury
6.
Besides the pattern instructions, our law, in the Eleventh Circuit, holds that to
prove an accused guilty beyond a reasonable doubt as an aider and abettor, even when the
substantive crime is a general intent one, requires a showing of specific intent. See United
States v. Baytank, 932 F. 2d 599 (5th Cir. 1991)(For a general intent crime, when one is
charged as an aider or abettor, there is a required showing of specific intent); See also,
United States v. Lindell, 881 F. 2d. 1313 (5th Cir. 1989) citing United States v. Payne,
750 F. 2d 844, 860 (11th Cir. 1985)(government had to show defendant willfully
about, and sought through his actions to make it a success). Therefore, Defendant
Stoufflet had every right to rely on the defenses of advice of counsel and good faith. Any
advice to the contrary was erroneous and rises to the level of ineffective assistance of
counsel.
Case 1:08-cr-00082-CC Document 22 Filed 04/15/2009 Page 5 of 8
7.
Defendant should nevertheless be permitted to raise these defenses. Mr. Stoufflet spent an
exorbitant amount of money for lawyers who advised him on the legalities of his
all the local laws.2 For the Court to have refused his right to raise this defense, would
absolutely eradicate the need for lawyers to assist in advising companies about the
8.
As noted above, and in many other pleadings, this is far from a straightforward
drug distribution case. A myriad of laws, regulations, including but not limited to medical
board rules, were reviewed in order to determine the legality of this business model. By
the fact that the government chose to indict Defendant vis-à-vis a hodgepodge of federal
laws, is proof enough that this was not a normal drug case. The government’s recitation
of case law about drug conspiracies to bar the defendant from raising his sole defense is
completely distinguishable.
9.
What cannot be overlooked is the fact that this Honorable Court denied the
Government’s motion in limine to remove the advice of counsel defense. Although Mr.
2
Until this year, there were no federal laws on point dealing with these issues.
Case 1:08-cr-00082-CC Document 22 Filed 04/15/2009 Page 6 of 8
Stoufflet already pleaded guilty, this Honorable Court cited appropriate law in finding
that these charges were specific intent crimes allowing any defendant to raise reliance on
counsel as a defense. [Doc. # 225] It is unclear as to the Court’s later reasoning to deny
Dr. Andre Smith the right to raise a good-faith defense. [Doc. # 233].
10.
It cannot be overlooked that recently in the United District Court for the Southern
District of Florida, in United States v. Hernandez, Case No. 08-60027, a case factually on
all fours with this one, including the indictment, the Honorable Judge Zloch instructed
the jury on an advice of counsel defense. After a mistrial was declared, for jury
misconduct, the United States Attorney’s Office decided to dismiss all charges against
every defendant in the case including vacating prior guilty pleas because there was an
Prejudice Doc. 1214 in US. v. Hernandez]. For the United States Department of Justice to
file a dismissal of charges against one set of defendants based on an advice of counsel
defense, yet prosecute another set of defendants with an analogous advice of counsel
defense is Kafkaesque. Why are similarly situated defendants being treated dissimilarly
by the same government agency? Whether or not Mr. Stoufflet has a meritorious defense
is not an issue for this Honorable Court to decide. It is an issue for twelve impartial
citizens living in the Northern District. He should be granted the right to withdraw his
WHEREFORE, Defendant requests that this Honorable Court grant said motion.
Respectfully submitted,
s/Lawrence J. Zimmerman
Lawrence J. Zimmerman
Attorney for Defendant
SBN: 785198
CERTIFICATE OF SERVICE
I hereby certify that I have on this day served a true and correct copy of the within
which will automatically send e-mail notification of such filing to opposing counsels, Mr.
s/Lawrence J. Zimmerman
Lawrence J. Zimmerman
Georgia Bar No.785198
Suite 300
1800 Peachtree Street
Atlanta, GA 30309
(404) 351-3000