Case 1:06-cr-00337-CC-JFK Document 225 Filed 03/07/2008 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA, :

:
Plaintiff, :
: CIVIL ACTION NO.
vs. :
: 1:06-CR-0337-CC
M.D. ANDRE D. SMITH, et al., :
:
Defendants. :

ORDER
This matter is before the Court on 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 [Doc. No. 217]. While the Indictment in this
action names seven (7) defendants, Defendant Andre Smith is the only defendant
who has not entered a guilty plea who has expressed opposition to the Motion in
Limine.1 On March 7, 2008, counsel for the Government and Defendant Smith
appeared before the Court and orally argued their positions, which are also set forth
in briefs filed with the Court. Having considered the parties’ briefs and the oral
arguments of counsel, the Court finds that the Motion in Limine is due to be denied.
By way of background, Defendant Smith and six other individuals were
charged in a fifty-one count Indictment for their alleged involvement in an Internet-
based business that distributed and dispensed controlled substances and other
prescription drugs. Defendant Smith is charged in only Counts One, Two, and Four
of the Indictment. Count One charges Defendant Smith and the other defendants
with conspiracy to distribute controlled substances. Counts Two and Four charge
Defendant Smith and a co-defendant with the unlawful distribution and dispensing
of controlled substances.

1
Defendants Christopher Stoufflet, Troy Sobert, and Dr. Thu Anh Hoang have
entered guilty pleas.
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The Government moves the Court to preclude Defendant Smith and any other
defendants proceeding to trial from arguing or presenting evidence that they did not
know they were violating the law and/or were advised by legal counsel that they
were not violating the law when they committed the acts alleged in the Indictment.
The issue that must be determined to resolve the pending Motion in Limine is
whether the crimes charged are general or specific intent crimes, as both the
Government and Defendant Smith appear to agree, and binding and persuasive case
law establishes, that good faith defenses are generally unavailable against general
intent crimes but generally available against specific intent crimes. United States v.
Lankford, 955 F.2d 1545 (11th Cir. 1992) (holding that it is an abuse of discretion to
exclude evidence of good faith defense to crime requiring specific intent); see also
United States v. Warner, 498 F.3d 666, 691 (7th Cir. 2007); United States v. DeFries,
129 F.3d 1293, 1308 (D.C. Cir. 1997); United States v. Wall, 130 F.3d 739, 746 (6th Cir.
1997); United States v. Pearrell, 74 F.3d 1234 (4th Cir. 1996) (unpublished table
decision). But see United States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (“Specific
intent crimes do not, as a rule, necessitate a showing the defendant intentionally
violated a known legal duty.”); United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir.
1982) (pointing out that murder is a specific intent crime, but a good faith belief in
its legality is no defense).
Section 841(a)(1) of Title 21 of the United States Code provides that “it shall
be unlawful for any person knowingly or intentionally ... to manufacture, distribute,
or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance.” The conspiracy statute, 21 U.S.C. § 846, provides the
following: “Any person who attempts or conspires to commit any offense defined
in this subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or conspiracy.”
The Court agrees with Defendant Smith that the crimes charged are specific
intent crimes, making the exclusion of good faith defenses inappropriate. Relying

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on United States v. Cameron, 907 F.2d 1051 (1990), Defendant Smith asserts that the
Eleventh Circuit has expressly held that specific intent is an element of the offenses
with which Defendant Smith is charged. The Government argues in response that
the Eleventh Circuit’s discussion of “specific intent” in Cameron does not address
specific intent crimes versus general intent crimes but rather spoke of “specific
intent” simply in terms of volition. The Government’s interpretation is not
supported, however, by Eleventh Circuit and other circuit court decisions that have
since interpreted and discussed the holding and implications of Cameron in relation
to the statutory provisions at issue in this case. In Ettinger, 344 F.3d 1149 (11th Cir.
2003), the Eleventh Circuit stated, in relevant part, the following:
Cameron is the perfect example of a “specific intent” crime and the use
of a “diminished capacity defense” to negate the specific intent element
of the crime. Cameron was charged with participating in a conspiracy
to distribute “crack” cocaine in violation of 21 U.S.C. § 841(a)(1).
Section 841(a)(1) makes it unlawful for a person knowingly and
intentionally to possess with intent to distribute a controlled substance.
The statute on its face sets forth the specific intent, “with intent to
distribute.”
Id. at 1154. The Eleventh Circuit further stated, “On its face, the statute Cameron
was charged under details the specific intent requirement to be satisfied for
conviction.” Id. The Sixth Circuit similarly interpreted Cameron as identifying
intent to distribute controlled substances and conspiracy to possess and distribute
controlled substances as specific intent crimes. United States v. Willis, 187 F.3d 639
(6th Cir. 1999) (unpublished table decision); see also United States v. Childress, 58
F.3d 693, 709 (D.C. Cir. 1995) (identifying a § 846 conspiracy as a “specific intent”
crime and noting that the Eleventh Circuit requires proof of specific intent as an
element of the offense).
In light of the foregoing authorities, the Court rejects the Government’s
position that the crimes with which Defendant Smith is charged are general intent
crimes. Good faith evidence is relevant, and the Court DENIES the Motion in Limine
to Exclude Good Faith Defenses, Including Advice of Counsel, Mistake of Law, and

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Erroneous Belief the Conduct was Legal [Doc. No. 217].

SO ORDERED this 7th day of March, 2008.

s/ CLARENCE COOPER
CLARENCE COOPER
UNITED STATES DISTRICT JUDGE

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