Case 1:06-cr-00337-CC-JFK Document 217 Filed 02/28/2008 Page 1 of 14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA :

: CRIMINAL INDICTMENT
v. :
: NO. 1:06-CR-337
CHRISTOPHER STOUFFLET, et al. :
:
Defendants. :

GOVERNMENT’S MOTION IN LIMINE TO EXCLUDE

GOOD 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, David

E. Nahmias, United States Attorney for the Northern District of

Georgia, and Randy S. Chartash, and Lawrence Sommerfeld, Assistant

United States Attorneys, and files this Motion In Limine To Exclude

Good 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 count

Indictment for their involvement in an Internet-based business that

distributed and dispensed controlled substances and other

prescription drugs to thousands of customers without valid

prescriptions.1 Specifically, Count One of the Indictment charges

1
The other named defendant, Troy Sobert, pleaded guilty.

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defendant Stoufflet and the defendant-doctors with conspiracy to

violate the controlled substance act, 21 U.S.C. § 846; Counts Two

through Four charge defendant Stoufflet and defendant-doctor

Vladimir Andries (Count 3) and defendant-doctor Andre Smith (Counts

2 and 4) with the unlawful distribution and dispensing of

controlled substances, 21 U.S.C. § 841; Count Five charges the

defendants Christopher Stoufflet with conspiracy to money launder,

18 U.S.C. § 1956(h); Counts Six through Forty-Eight charge

defendants Christopher Stoufflet with promotional and transactional

money laundering, 18 U.S.C. §§ 1956, 1957; and Counts Forty-nine

through Fifty-one charge Christopher Stoufflet with misbranding

drugs while held for sale after shipment into interstate commerce,

21 U.S.C. §§ 331(k) and 333(a)(2). See Attachment (table

summarizing counts charged against each defendant).

This case centers around an Internet-based business,

escriptsmd.com, that defendant Christopher Stoufflet, together with

others, established and operated. In 2001, Stoufflet sought to

capitalize on the Internet boom by setting up an on-line business

to sell pharmaceutical products, including controlled substances.

Stoufflet's idea was to find a physician, or several physicians,

who would issue prescriptions for customers who requested

medication on-line. Stoufflet would then cause the dispensing of

the medication, based on the physician's “prescriptions”, to

customers throughout the United States.

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Throughout the investigation of this matter and continuing up

to this date, the government has sought to find out whether

defendant Stoufflet would rely on the advice of counsel he received

while running the escriptmd.com business. In late November, counsel

for defendant Stoufflet waived attorney-client privilege.2 Counsel

for defendant Stoufflet subsequently produced thousands of

documents to the United States; the government, in turn, provided

copies of those documents to the other remaining defendants. In a

sudden about-face, less than two-weeks ago counsel for defendant

Stoufflet informed the United States that Stoufflet would seek

trial. Counsel has indicated their primary argument rests on

Stoufflet’s supposed good faith beliefs as to the law based on

advice of counsel.

Counsel for the defendant-doctors have also asserted that they

intend to rely on an advice of counsel as well, although their

defense is attenuated. They intend to argue that defendant

Stoufflet or someone from escripts.com told them that they had

consulted an attorney and that the attorney “blessed” the business

model. The Court need not waste its time with this morass at

2
Raising an advice of counsel defense waives the
attorney-client privilege. See, e.g., United States v.
Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)(cannot use
attorney-client privilege as both a shield and a sword); United
States v. Burger, 773 F. Supp. 1419, 1429 (D. Kan. 1991)(waiver
in context of pretrial discovery); United States v. Mierzwicki,
500 F. Supp. 1331, 1334 (D. Md. 1980) (fairness demands treating
the defense as a waiver of the attorney-client privilege).

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trial. Good faith defenses, such as advice of counsel, either

directly or once-removed, are unavailing as a matter of law to the

essential charges in the indictment.

In asserting an advice of counsel defense, a defendant, in

essence, represents that he fully disclosed all relevant facts to

an independent attorney, the attorney offered a legal opinion or

rendered legal advice on the legality of a proposed transaction,

and the defendant relied in good faith on this opinion or advice in

determining a course of action. See, e.g., C.E. Carlson, Inc. v.

SEC, 859 F.2d 1429, 1436 (10th Cir. 1988); United States v. Carr,

740 F.2d 339, 347 (5th Cir. 1984). As discussed further below, good

faith defenses, such as the advice of counsel, only apply to crimes

requiring a specific intent to break the law. As to the general

intent crimes charged in the Indictment, such defenses are

irrelevant as a matter of law.

II. Argument

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.

The defendants are not entitled to present evidence relating

to their erroneous belief that their conduct was legal because the

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

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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 intent to distribute is a general intent offense).

The drug charges and the two conspiracy charges contained in

the Indictment are not crimes in which the defendants’ good faith

belief in the legality of their conduct could negate an element of

the charged conduct. See Bryan v. United States, 524 U.S. 184, 193

(1998)(unless the text of the statute dictates a different result,

the term “knowingly” merely requires proof of knowledge of the

facts that constitute the offense); United States v. Cain, 130 F.3d

381, 384 (9th Cir. 1997)(district court properly gave instruction

in cocaine case that government need not prove defendant knew his

conduct was illegal). Thus, the government moves to exclude any

evidence or argument pertaining to a defense that defendants

erroneously believed their conduct was legal.

All the charges in this Indictment except the substantive

money laundering offenses are general intent crimes to which it is

not a defense that defendants lacked the intent to violate the law.

Simply stated, lack of intent to violate the law is not a defense

to a general intent crime. See United States v. Fahey, 411 F.2d

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

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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 sum, like all good faith defenses, the advice of counsel

defense is available only as against specific intent crimes. See

United States v. Powell, 513 F.2d 1249, 1251 (8th Cir.

1975)(holding advice of counsel no defense to crime of unlawful

firearms dealing under § 922 or possession of firearms as a felon

because defendant's specific intent or knowledge was not an

essential element of crimes); United States v. Dyer, 750 F.Supp.

1278, 1293 (E.D.Va.1990) (stating “[i]n general, an advice of

counsel defense applies only where the violation requires proof of

specific intent, that is, proof that a defendant has actual

knowledge that his conduct is illegal.”); see also United States v.

Soares, 998 F.2d 671, 673-74 (9th Cir. 1993)(affirming district

court's decision that offense under 18 U.S.C. § 1954 was not a

specific intent crime and therefore prevented defendant from

offering advice of counsel defense); United States v. Bristol, 473

F.3d 439, 443 (5th Cir. 1973). The reason for this is that the

advice-of-counsel defense is relevant to negate proof of a

defendant's intent to violate the law, and willful intent is an

essential element only in specific intent crimes. See, e.g., United

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States v. Carr, 740 F.2d 339, 346 (5th Cir. 1984). Thus, good faith

defenses, such as advice of counsel, are irrelevant to the

essential charges of this indictment, which require only general

intent.

A. The Conspiracy Charges (Counts One and Five)

Specifically as to Count One in which all of the defendants

are named, conspiracy to distribute a controlled substance, and

Count Five, conspiracy to money launder, in which only defendant

Stoufflet is charged, these charges require only proof of general

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

the Eleventh Circuit recently 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

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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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 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

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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 necessary.”)

Thus, defendants' beliefs concerning the legality or the

propriety of internet prescribing of controlled substances is not

a proper defense, and evidence of their good faiths beliefs,

through the advice of counsel, mistake of law, or any other rubric,

is irrelevant to the charges and should be excluded. See Fed. R.

Evid. 401, 402, 403.

B. The Control Substance Act Charges (Counts Two - Four)

Defendant Stoufflet and defendant-doctors Andries and Smith

are charged in Counts Two through Four of the Indictment with

violating 21 U.S.C. §§ 841(a)(1), which requires a “knowing”

scienter, not a “willful” one. The government 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.” United States v. Lynch, 233 F.3d

1139, 1141 (9th Cir. 2000). Even if Stoufflet could meet all of

the other elements required for an advice-of-counsel defense, it is

not available as a defense to the general-intent crimes with which

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he is charged.4

C. The Federal Food, Drug, and Cosmetic Act Charges

(Counts Forty-Nine - Fifty-One)

Defendant Stoufflet is charged in Counts Forty-Nine through

Fifty-One with misbranding drugs while held for sale after shipment

in interstate commerce. Binding precedent holds that “testimony

from the lawyers that defendants consulted . . . on the legality of

the defendants’ acts . . . is not relevant to whether defendants

intended to commit fraud.” In United States v. Walker, 26 F.3d 108,

109 n.1 (11th Cir. 1994), the defendant was convicted of introducing

adulterated food into interstate commerce with intent to defraud

and mislead. Id. at 109. Defendant Walker argued on appeal that

the district court abused its discretion when it excluded testimony

from the lawyers that defendant consulted when seeking advice on

the legality his actions. The Eleventh Circuit in Walker held that

any advice of counsel regarding the legality of certain acts was

irrelevant to the key question – namely, whether the defendant

4
The advice of counsel defense, however, may be raised as a
defense to the substantive money laundering charges, Counts 6
through 48, as money laundering is a specific intent crime. Thus,
evidence that defendant Stoufflet sought and obtained advice from
attorneys as to the legality of the internet on-line prescription
business is potentially relevant to a defense to the money
laundering offenses with which he is charged in Counts 6 through
48, provided the advice was obtained prior to the alleged date on
which the specific financial transactions occurred and that it is
relevant to those charges. However, only defendant Stoufflet
remains as to these counts. Accordingly, such evidence is
arguably relevant not to the defendant-doctors, but only as to
defendant Stoufflet, and only as to charges of substantive money
laundering.

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intended to commit fraud.

For the same reasons, defendant Stoufflet should be precluded

from introducing any evidence or arguing to the jury advice he

received as it relates to the charges in the Indictment alleging

violations of the Federal Food, Drug, and Cosmetic Act.

D. Pre-Trial Ruling

Counsel for defendants have made clear that the so-called

advice of counsel defense and the supposed good faith of their

clients as to the state of the law is their primary defense to the

charges alleged in the Indictment. The United States anticipates

that they will raise the defense in opening statement. The

government intends on objecting to such an argument as these

defenses and any evidence related to these defenses are irrelevant

as a matter law.

Moreover, precluding these irrelevant defenses would

substantially shorten the trial so that the jury could focus on the

relevant issues at hand. In fact, there is little, if any, factual

dispute as to the eScipts business model and as to the part each

defendant played in the distribution and/or dispensing of

controlled substances. The Court should streamline the trial and

exclude evidence or argument as to the defendants’ supposed good

faith, as such inquiry is irrelevant as a matter of law. Moreover,

such evidence and argument endangers unfair prejudice, confusion of

issues, and misleading the jury. Presentation of such irrelevant

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defenses would result in undue delay, waste of time, and needless

presentation of evidence.

Given that good faith defenses such as advice of counsel and

mistake of law are not available to defendant Stoufflet and the

other defendants as to the vast majority of the conduct charged in

the Indictment, this Court should preclude evidence and argument of

such defenses under Rules 401, 402, and 403 of the Federal Rules of

Evidence.

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III. Conclusion

For the foregoing reasons, this Court should grant the

Government’s Motion in Limine to Exclude Good Faith Defenses,

Including Advice of Counsel, Mistake of Law, and Erroneous Belief

the Conduct Was Legal. Defendant-doctors should be precluded from

presenting any evidence or argument as to their subjective beliefs

as to the legality of their conduct. Defendant Stoufflet should

likewise be precluded, except as relates to the substantive money

laundering counts against him.

Dated: February 28, 2008.

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
(404) 581-6009
(404) 581-6181 (facsimile)

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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 Courier New font, 12 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 via the

Electronic Case Filing system of the United States District Court

for the Northern District of Georgia.

This 28th day of February, 2008.

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

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