Case 1:08-cr-00082-CC-JFK Document 104-1

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FILED IN CLERK'S OFFICE

U.S.D.C. Atlanta

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF GEORGIA A T L A N T A DIVISION UNITED STATES OF A M E R I C A

V.

A P R 2 3 2012

C R I M I N A L QASE NOS. l:08-CR-082-l-CC l:06-CR-337-l-CC

CHRISTOPHER STOUFFLET

MEMORANDUM OF L A W IN SUPPORT OF PETITION TO V A C A T E AND SET ASIDE CONVICTION [28 U.S.C. $ 22551 McCarty v. United States expands the notion of "voluntariness" to include the concept that the defendant must have an "understanding ofthe essential elements of the crime charged, including the requirement of specific intent," in order for a plea in the Federal Courts to be valid under [Rule] 1 1 . . . . Henderson v. Morgan, 426 U.S. 637, 653-54 (1976) (intemal punctuation omitted). INTRODUCTION AND SUMMARY OF ARGUMENT Rule 11 requires a court to ensure that a pleading defendant is both informed and understanding of the elements and nature ofhis crime, including whether "specific" criminal intent is on element ofhis offense. Fed. R. Crim. P. 11(b)(1)(G). Here, counsel recommended, and the Court accepted petitioner's guilty plea before the Court had decided whether "specific intent" was a required element. In other words, petitioner was allowed to plead guilty to a yet-tobe defined offense. After ruling in a co-defendant's case that specific intent was, indeed, an essential element, petitioner moved to withdraw his plea, since the ruling enabled his prepared advice-of-counsel defense. The Court rejected the motion as untimely, and held that petitioner had made a "strategic decision" to plead regardless of the elements of the offense. The Court ruled, that is, that petitioner made an informed decision to make an uninformed plea.

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Both counsel and the Court made constitutionally significant errors, respectively, in advising and then accepting a guilty plea from a defendant who was not informed of the elements and nature ofhis offense. Neither petitioner nor his counsel knew the nature ofhis offense - and could not have known - because the Court had not yet decided what its elements were. Had petitioner been informed before or during his plea colloquy that "specific" intent was a key element, he would not have pled guilty and would have defended at trial by asserting his prepared advice-of-counsel defense. New counsel was appointed for appeal, who declined petitioner's entreaties to appeal these errors, and who instead filed an Anders brief. With no errors having been appealed, the conviction was affirmed. Petitioner seeks habeas relief on the basis that trial counsel was constitutionally deficient in recommending that petitioner plead guilty to an undefined crime, and in not objecting when the Court nevertheless accepted such a plea. Counsel was further deficient for his prejudicial delay in filing a motion under Rule 11 (d) to withdraw the plea. Appellate counsel was constitutionally deficient for failing to assert the Court's Rule 11 errors - or any errors - on appeal. Petitioner, who is now in federal custody, timely asks the Court to vacate his plea and conviction for reasons stated. FACTUAL AND PROCEDURAL SUMMARY Petitioner and five professionals operated an internet pharmacy from 2001-03, where weight-loss medications were dispensed solely on the basis of on-line medical questionnaires. Because a growing number of state medical boards were disapproving of this practice, and because federal drug laws were keyed to the evolving state-approved practices, petitioner relied

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on the advice of expert counsel for staying legally compliant. When petitioner and his colleagues were nevertheless indicted in 2006, they asserted advice-of-counsel as a defense to criminal intent. Just before trial, the Govemment moved in limine to exclude this defense, arguing that 21 U.S.C. 841 was a strict liability offense - or one of "general intenf to which lack of mens rea, or "specific intent," was irrelevant. Under the government's theory, guilt flowed from the mere doing of the proscribed acts (here, internet prescribing), regardless of intent to break the law. [Doc. No. 217 at 9] ("The Govemment is required to show only that Stoufflet or the defendant-doctors must know that he is in fact performing an act, whether or not he knows that the act has been criminalized by statute . . . [advice-of-counsel] is not available as a defense to the general-intent crimes with which he is charged.") (footnote omitted). On the eve of trial, with the Government's motion still undecided and a take-it-or-leave-it plea offer about to expire, petitioner pled guilty to one count under Section 841 and a related money-laundering count under 18 U.S.C. 1957. The Court conducted a plea hearing under Rule 11. Although petitioner's counsel expressed dismay about the still uncertain element of intent, petitioner nevertheless persisted in his plea so as to avoid greater potential criminal exposure were the Court to define the elements of the offense without mens rea. [Plea Tr. at 29-30] The Court thereupon accepted the plea and factual basis as sufficient for a "general intenf offense. [Id. at 31.] Then, three days after accepting petitioner's plea, the Court overmled the same in limine motion in a co-defendant's case. The Court raled that Section 841 was, in fact, a crime of "specific intent", to which advice-of-counsel was a viable defense. [Doc. No. 225 at 2] ("[T]he

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crimes charged are specific intent crimes, making the exclusion of good faith defenses inappropriate.") When petitioner leamed of the Court's raling, he began a succession of e-mails, letters and calls to counsel urging him to move his plea's withdrawal. Exhibit " A . " In one e-mail petitioner protested that he had "resort[ed] to basically begging" to get counsel to challenge the plea. Id. After months of equivocation ~ during which co-defendants were tried ~ counsel ultimately withdrew from the case and new counsel filed the motion to withdraw under Rule 11(d). The Court held an evidentiary hearing on the withdrawal motion. Former counsel testified that he "had never been so confiised by an area of the law" when urging petitioner to plead, but that he stood by his recommendation as a "strategic decision" necessitated by the potential that the advice-of-counsel defense could be barred. [Withdrawal Tr. at 71; May 20, 2009]. The Court denied the motion on the basis that the plea was a deliberate "strategic decision" to plead ~ regardless of "intent" - in order to secure a plea deal. The Court also mled that the motion was untimely. [Doc. 48 at 16] ARGUMENT A. Counsel's failure to determine the elements and legal defenses to the crime he was charged with defending was not "objectively reasonable" under Strickland v. Washington, 466 U.S. 668 (1984).

"I can tell you that I have never been so confused by an area of the law. , . . [w]ithin the same circuits you can find cases going both ways.. . . [A]ll we were doing was preparing the advice of counsel defense.... [I]f he rales against us [on "intent"] we are dead in the water and our deadline to plead guilty is going to be before Judge Cooper rales.

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Tr. Of Plea Withdrawal Hr'g. at 30-40; May 20, 2009. (Excerpts of counsel's testimony). Counsel can be forgiven for being confused by Eleventh Circuit law ~ at least initially. Eleventh Circuit case law is indeed contradictory on the meaning and requirement of "intenf as an element of 21 U.S.C. 841. Some panels and district courts require only "general intent" (i.e., actus reas but not mens reas). Others make "specific intent" an essential element (i.e., both actus reas and mens rea). Compare, e.g. United States v. Green, 296 Fed. Appx. 811 (11* Cir. 2008) ("[T]he statutory language makes no reference with willfulness, nor intent to violate the law, as a mens rea requirement.") (Citing 21 U.S.C. 841), with United States v. Hargrove, 424 Fed. Appx. 926, 929 (11* Cir. 2011) ("We have recognized an 'innocent intent' defense in respect to Section 841 (a)(1) charges. . . . Innocent intent is not an affirmative defense, but a means of negating the mens rea element of the offense.") (Citing United States v. BaptistaRodriguez, 17 F.3d 1354, 1368 n. 18). Given such judicial discord over a key element of a major crime, counsel's initial bemusement is not unreasonable. What is inexcusable, rather, is his choice to remain confused. See Herring V. Estelle, 491 F.2d 125, 128 (5'*> Cir. 1974) ("[I]f the quality of counsel's service falls below a certain minimum level, the client's guilty plea cannot be knowing and voluntary . . . [a]nd a lawyer who is not familiar with the facts and law relevant to his client's case cannot meet that required minimum level.") (emphasis added). Reasonably competent counsel would have filed a motion in limine (as the govemment later did) to get an early mling from the Court on the "intent" and advice-of-counsel issues. Instead, counsel committed to an "all in" advice of counsel defense without knowing whether the Court would let it in. As a result, counsel invited the prosecution to "jam" the defense with a Hobson's choice

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on the eve of trial by moving in limine after it was too late to consider other defensive options. A reasonably competent architect would not have built an expensive home without knowing whether the soil would support it, especially in a neighborhood known for quicksand. The same goes for reasonably competent counsel. B. Counsel's failure at the Rule 11 hearing to ensure an explanation of the elements and nature of the offense was prejudicially unreasonable. "It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail." Sorich v. United States, 555 U.S. 1204, 1206 (2009) (Scalia, dissenting, from denial of cert.) Rule 11(b) provides that "[bjefore the Court accepts a plea of g u i l t y . . . the Court must inform the defendant of, and determine that the defendant understands . . . the nature of each charge to which the defendant is pleading." Fed. R. Crim. P. 11(b)(1)(G). See Lajano-Perez, 21A F.3d at 224 ("Rule 11's requirement that the defendant[] understand the 'nature of the charge against [him] refers to the elements of the offense.") As the Supreme Court enjoined, "a defendant must have an understanding of the essential elements of the crime charged, including the element of specific intent, in order for a plea in the federal courts to be valid under [Rule] 11." Henderson 426 U.S. at 653-54, {citing McCarthy v. United States, 394 U.S. 459, 471 (1969) (intemal punctuation omitted). Moreover, "[w]hen mens rea is such a critical element of an offense, the district court must determine . . . that the defendant understands the nature of the mental element." Sierra v. Govt, of Canal Zone, 5A6V.2d 11, 80 (5* Cir. 1977). {Citing Henderson, supra; McCarthy, supra). Further, "[a]t a minimum, the defendant must understand the 'critical' and 'essential' elements of the offense to which he or she pleads guilty." United States v. Valdes, 362 F.3d 909

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(6* Cir. 2004) (citing Bousley v. United States, 523 U.S. 614, 618-19 (1998). The Court accepted petitioner's plea without once addressing the element of "intent". Tr. Of Guilty Plea Proc. At 13-14 (March 4, 2008). Indeed, the Court did not enumerate any ofthe "critical or essential" elements. Id. It merely read "the gist" of the superseding information and asked petitioner i f h e understood the nature of the charges. Id. At 14 ("Having read to you the gist of the two counts to which you are pleading guilty do you understand the nature of the charges to which you are pleading guilty?") Nowhere in the plea colloquy did the Court explain that some form of "intent" was even an element of the crime, let alone inform the petitioner that in order to be guilty of violating Section 841, he had to have had "specific" criminal intent, and not just "general intenf. Even after petitioner's counsel made it clear, following the allocuted factual basis, that the plea was based only upon the "intent to do the acts as set forth in the incident," the Court failed to inform counsel or petitioner that merely "intent to do the acts" was insufficient for an offense that required intent to also break the law. Id. At 29-31. (See McCarthy, 394 U.S. at 470) ("Remarks ofthis nature cast considerable doubt... that petitioner pleaded guilty with fiill awareness ofthe nature of the charge.") Thus, not only did the Court fail to inform or ensure petitioner's understanding of the element of "intent", the Court accepted a factual basis insufficient to support a "specific intent" offense. Fed. R. Crim. P. 11(3). See United States v. Lopez, 907 F.2d 1096, Noo, (11*'^ Cir. 1990) ("The purpose ofthis requirement is to protect a defendant who mistakenly believes his conduct constitutes the criminal offense to which he is pleading.") (Citing McCarthy, 394 U.S. at 467).

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Later on, in denying petitioner's motion to witlidraw liis plea, the Court, respectfully, justified it's omissions by finding that petitioner had made a "strategic decision" to forego knowledge of "intenf in exchange for a plea deal. Yet, there is nothing that authorizes a defendant to waive (or "strategically" forego) Rules 11(b)(1)(G) or (3). And when the Court read to defendant each of the rights he was waiving by pleading guilty, waiver of the right to be informed and understand the nature of the charge was not among them. Likewise, petitioner was not told that he was waiving the right to a factual basis that supported his plea. Tr. Of Guilty Plea Proc. At 9-13. Petitioner did not - and legally could not - waive the right to be informed of the nature of the crime to which he was pleading guilty. Merely recasting a waiver as a "strategic decision" changes nothing. See McCarthy, 394 U.S. at 472 ("It is, therefore, not too much to require that before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.") Thus, counsel's failure to seek an in limine definition was compounded, if not exceeded, by counsel's failure at the Rule 11 hearing either to insist upon the Court's definition of the level and type of "intenf required, or to object when the Court accepted the plea without having provided one. Had counsel had a basic awareness of Rules 11(b)(1)(G) and (3), he could have made up for the in limine omission by obtaining the Court's definition of "intent" before deciding whether to persist in recommending the guilty plea. Counsel's performance was not objectively reasonable and it resulted in the petitioner's consummation of a guilty plea he would not have otherwise made. Indeed, petitioner tried to repudiate the plea once he leamed the "intent"

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element of the charge, as discussed below. C. Counsel prejudicially delayed moving the withdrawal of petitioner's plea following the Court's post-plea clarification ofthe element of intent.

Rule 11(d) allows a defendant to withdraw his plea i f h e "can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). A "fair and just reason is determined by the totality of the circumstances, considering the following factors: (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 govemment would be prejudiced. . . ." United States v. Buckles, 843 F.2d 469, 471 (11* Cir. 1988). When the Court, three days after accepting petitioner's plea, undermined the plea's legal and factual basis by mling that "specific intenf was indeed an element of Section 841, to which advice-of-counsel was a defense, counsel either failed to leam of it or failed to appreciate its significance for petitioner's plea. Petitioner did leam of it, however, and began to badger counsel to do something. Petitioner's efforts are documents in a series of e-mails, calls and letters. See Exh. A . For months counsel temporized until finally, six months after the plea, counsel withdrew without filing a Rule 11(d) motion. The Court appointed new counsel who, after reasonable delay while becoming acquainted with the complexity of the case, filed the withdrawal motion under Rule 11(d)(2)(B). The Court conducted an evidentiary hearing and took testimony from petitioner and former counsel. The Court then denied the withdrawal motion, making legal and factual findings against petitioner on all of the Buckles factors. [Doc. No. 48] The Court placed particular emphasis on

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the third and forth factors, i.e., the waste ofjudicial resources and prejudicial delay to the govemment. To the extent that the Court's fmdings on these factors were justified, they are a direct result of counsel's procrastination, vacillation, and misperception of the significance of the "specific intent" mling immediately post-plea. Petitioner did everj/thing in his power to convince counsel to file an expeditious withdrawal motion. See Exh. A . The Court's findings on the first two Buckles factors, however, were clearly erroneous and an abuse of discretion. While petitioner had "close" counsel, he had anything but his "close assistance". It is clear from the exhibited communications and counsel's testimony excerpted above that he was confiised, discouraged and generally bumed out over the case following the plea. More importantly, the same misapprehension of Rule 11's requirements carried over to counsel's approach to a plea withdrawal. He quite clearly (and erroneously) believed that petitioner's "strategic decision" to plead in ignorance of the nature of the offense was binding and irrevocable regardless of the Court's subsequent "specific intent" mling. The Court's "knowing and voluntary" Buckles finding was clearly erroneous and an abuse of discretion. Because the Court had not yet mled, neither counsel nor petitioner could possibly have known the nature of the "intenf element, or whether the Court would mle that "intent" was an element at all. The Court itself, respectfiilly, doomed the validity of the plea by not informing petitioner of this element or ensuring his understanding. Sierra, 546 F.2d at 80 ("When mens rea is such a critical element of an offense, the Court must determine, on the record by personally addressing the defendant, that the defendant understands the nature of the mental element.") {Citing McCarthy and. Henderson); See also United States v. Lujano-Perez, 274 F.3d 219, 224

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(5* Cir. 2001 ("Rule 11's requirement that the defendants understand the 'nature of the offense' against them refer to the elements of the offense.") (Citation omitted). D. Appellate counsel declined to appeal the Court's Rule 11 errors - or any errors at all - and instead filed an Anders brief endorsing the rationale that petitioner's "strategic decision" to plead had waived his right to be informed and understand the elements of his charge.

Without once speaking, meeting or conversing with petitioner, appointed appellate counsel rejected his entreaties to appeal the errors of the Court in accepting petitioner's blind plea. Indeed, appellate counsel refused to appeal anything, including timely objections by trial counsel that application of Section 841 against petitioner denied Fair Notice and was in violation ofthe Separation of Powers Doctrine. Instead, counsel wrote avi. Anders brief essentially defending the actions ofthe trial counsel and the Court. It could easily be mistaken for a brief written by the prosecution. Yet, like trial counsel and the Court, appellate counsel failed to perceive the clear error in the proceedings below, that is, that petitioner was advised to plead to an undefined charge, and the court accepted the plea on the basis that petitioner had "strategically decided" to forego the right to be informed. Petitioner complains that this type of "advocacy" by appellate counsel was worse than no advocacy at all, and that appellate counsel's failure to challenge a single error below, given these circumstances, was constitutionally deficient assistance of counsel. As a direct result of appellate counsel's failures - or, indeed, as a result of counsel's defense of the errors petitioner's conviction was affirmed.

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CONCLUSION Petitioner should not have been advised or allowed to consummate his guilty plea in ignorance ofthe elements and nature ofhis offense. Had he known that "specific intenf was a required element to which his prepared advice-of-counsel was a viable defense, he would not have offered or consummated his plea. These were errors of both counsel and, respectfiilly the Court. Because the Court had not decided which type of "intenf would be the law of this case, and because Eleventh Circuit law was irreconcilably contradictory, petitioner's plea was per se uninformed. Not until three days afl:er accepting petitioner's plea did the Court for the first time define the elements ofthe offense. Yet the Court sustained the plea when petitioner repudiated it, on the theory that petitioner had "strategically decided" to waive knowing whether or what type of "intent" was an element ofhis offense. For the reasons stated herein, petitioner requests that his conviction be vacated. Respectfiilly submitted, this the / / day of April, 2012.

CHRISTOPHER STOUFFLET, Pro Se

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