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The other named defendant, Troy Sobert, pleaded guilty.1UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIAATLANTA DIVISIONUNITED STATES OF AMERICA ::CRIMINAL INDICTMENTv. ::NO. 1:06-CR-337CHRISTOPHER STOUFFLET, et al.::Defendants. :
GOVERNMENT’S MOTION IN LIMINE TO EXCLUDEGOOD FAITH DEFENSES, INCLUDING ADVICE OF COUNSEL, MISTAKE OF LAW, AND ERRONEOUS BELIEF THE CONDUCT WAS LEGAL
COMES NOW the United States of America, by its counsel, DavidE. Nahmias, United States Attorney for the Northern District ofGeorgia, and Randy S. Chartash, and Lawrence Sommerfeld, AssistantUnited States Attorneys, and files this Motion In Limine To ExcludeGood Faith Defenses, Including Advice of Counsel, Mistake of Law,and Erroneous Belief the Conduct Was Legal.
I.The Indictment
Defendant Christopher Stoufflet and six other individuals,including five doctors, were charged in a fifty-one countIndictment for their involvement in an Internet-based business thatdistributed and dispensed controlled substances and otherprescription drugs to thousands of customers without validprescriptions.
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Specifically, Count One of the Indictment charges
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2defendant Stoufflet and the defendant-doctors with conspiracy toviolate the controlled substance act, 21 U.S.C. § 846; Counts Twothrough Four charge defendant Stoufflet and defendant-doctorVladimir Andries (Count 3) and defendant-doctor Andre Smith (Counts2 and 4) with the unlawful distribution and dispensing ofcontrolled substances, 21 U.S.C. § 841; Count Five charges thedefendants Christopher Stoufflet with conspiracy to money launder,18 U.S.C. § 1956(h); Counts Six through Forty-Eight chargedefendants Christopher Stoufflet with promotional and transactionalmoney laundering, 18 U.S.C. §§ 1956, 1957; and Counts Forty-ninethrough Fifty-one charge Christopher Stoufflet with misbrandingdrugs while held for sale after shipment into interstate commerce,21 U.S.C. §§ 331(k) and 333(a)(2). See Attachment (tablesummarizing counts charged against each defendant).This case centers around an Internet-based business,escriptsmd.com, that defendant Christopher Stoufflet, together withothers, established and operated. In 2001, Stoufflet sought tocapitalize on the Internet boom by setting up an on-line businessto sell pharmaceutical products, including controlled substances.Stoufflet's idea was to find a physician, or several physicians,who would issue prescriptions for customers who requestedmedication on-line. Stoufflet would then cause the dispensing ofthe medication, based on the physician's “prescriptions”, tocustomers throughout the United States.
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Raising an advice of counsel defense waives theattorney-client privilege. See, e.g., United States v.Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)(cannot useattorney-client privilege as both a shield and a sword); UnitedStates v. Burger, 773 F. Supp. 1419, 1429 (D. Kan. 1991)(waiverin context of pretrial discovery); United States v. Mierzwicki,500 F. Supp. 1331, 1334 (D. Md. 1980) (fairness demands treatingthe defense as a waiver of the attorney-client privilege).3Throughout the investigation of this matter and continuing upto this date, the government has sought to find out whetherdefendant Stoufflet would rely on the advice of counsel he receivedwhile running the escriptmd.com business. In late November, counselfor defendant Stoufflet waived attorney-client privilege.
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Counselfor defendant Stoufflet subsequently produced thousands ofdocuments to the United States; the government, in turn, providedcopies of those documents to the other remaining defendants. In asudden about-face, less than two-weeks ago counsel for defendantStoufflet informed the United States that Stoufflet would seektrial. Counsel has indicated their primary argument rests onStoufflet’s supposed good faith beliefs as to the law based onadvice of counsel.Counsel for the defendant-doctors have also asserted that theyintend to rely on an advice of counsel as well, although theirdefense is attenuated. They intend to argue that defendantStoufflet or someone from escripts.com told them that they hadconsulted an attorney and that the attorney “blessed” the businessmodel. The Court need not waste its time with this morass at
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