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Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 1 of 29

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA :


: CRIMINAL CASE NOS.
v. :
: 1:08-CR-082-1-CC
CHRISTOPHER STOUFFLET : 1:06-CR-337-1-CC

GOVERNMENT’S RESPONSE TO DEFENDANT’S


MOTION TO WITHDRAW GUILTY PLEA

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 R. Sommerfeld, Assistant United States Attorneys, and files this

Response to Defendant’s Motion to Withdraw Guilty Plea.

I. Background

Over a year ago, on or about March 4, 2008, the Defendant pled guilty to

criminal information number 1:08-CR-082-1-CC, admitting under oath before this

Court that he committed every element of the charged offenses, and, among other

things, that he entered into the plea voluntarily, without threat, and of his own free

will. (Tr. of Guilty Plea Proceedings [Docs 12, 16] (“Tr.”), at 16-17, 21, 24, 29-30.)

In summary, Defendant Christopher Stoufflet admitted that he was the majority

owner and operator of an illegal business which distributed vast amounts of controlled
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substances throughout the United States to individuals sight unseen. (Criminal

information [Doc 1], Guilty Plea and Plea Agreement [Doc 5] at 1-2 ¶ 1, Tr. 25-30;

PSR ¶¶ 11-36.) Defendant instructed the design of a website where controlled

substances and other prescription drugs could be ordered by members of the public,

and which would provide legal cover for customers and the physicians the Defendant

paid to push the pills. (Id. See also, Tr. of Trial Proceedings, March 2008, 1:06-CR-

337 [Docs 247-253] (“Trial Tr.”).) Defendant’s website gave customers cover by

distributing the drugs under the DEA number of a physician whom the customer never

saw. (Id.) In turn, Defendant’s website gave physicians cover by having the customers

complete a bare-bones “medical questionnaire”, and by having customers agree that

they had read forms which purported to remove liability from Defendant’s business

and the physicians. (Id.) Particularly illustrative of the sham, Defendant’s “medical

questionnaire” not only suggested the answers customers should provide to receive

their diet drugs, but even went so far as to permit customers to change their

information, such as their height and weight, until they met the qualifications

disclosed on the questionnaire. (Id.) Unsurprisingly, given the design of his website,

Defendant’s customers received well over 95% of the drugs they ordered. (Id.)

Defendant disputes none of the essential facts of the case. (Def.’s Mot. to Withdraw

Guilty Plea [Doc 16] (“Def. Mot.”) at 7 (“[The defendant] indeed committed all of the

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acts that the government alleges he did and accepts full responsibility for those

actions.”); Tr. 29-30; PSR ¶¶ 11-17.)

Having waited until mere days before trial was scheduled to commence on

March 10, 2008, Stoufflet was the last of the three charged principals of the criminal

operation to plead guilty. Despite the Defendant’s having the essential terms of the

plea for several months, if not the better part of a year (See attached correspondence,

dated June 28, 2007, November 19, 2007, and November 26, 2007. See also, Exs. to

Def. Mot. (correspondence from Defendant to defense counsel admitting several

discussions regarding the plea deal prior to February 2, 2008)), and despite the

Defendant’s waiting until days before trial to plead, the United States extended a

favorable offer that included the opportunity for the Defendant to receive full credit

for acceptance of responsibility and the potential for a low-end sentence

recommendation. (Guilty Plea and Plea Agreement [Doc 5], at 5-6 ¶ 7, 13-14 ¶

14(c).)1

1
Defendant asserts that he was presented with a 72-hour deadline to enter a plea
and thus he was unduly pressured and did not enter his plea voluntarily. (Def. Mot. 4, 8), To
the contrary, the record shows the Defendant was given months to contemplate his decision.
Indeed, Defendant’s own exhibits show that the Defendant discussed the plea deal in
consultation with his attorneys over a month prior to the March 4, 2008 hearing. (See
correspondence dated February 2, 3, and 6, 2008, including reference to “multiple discussions
regarding [Defendant] entering a plea”.) Like a number of the assertions made by the Defendant,
his claim that he was given a 72-hour ultimatum is false and grossly misleading, in a calculated
effort to attempt to create an issue where none exists. Moreover, especially when trial is set to
commence in less than a week, there is nothing improper about providing a defendant several
days before withdrawing the terms a negotiated plea. See also, infra, at 9 n.2.

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In addition to the principals of the company, the United States charged five of

the physicians employed by the operation. After the principals pled guilty to felonies,

several of the physicians pled guilty to misdemeanor violations of the Federal Food,

Drug, and Cosmetic Act, for distributing prescription drugs without a valid

prescription. One doctor, Andre Smith, proceeded to trial, presenting as part of his

defense that representatives of Defendant’s company assured him the business was

legal. A mistrial was declared after a hung jury. After jury questioning had completed

in a second trial, in August 2008 the balance of the doctors pled guilty to a

misdemeanor charge of misbranding drugs by distributing prescription drugs without

a valid prescription.

Defendant was originally scheduled to be sentenced on June 3, 2008. (Tr. 33.)

Because of the pending trial against the remaining doctor defendants, sentencing was

subsequently moved to December 1, 2008. [Docs 8, 9, 11.] On October 2, 2008, the

initial pre-sentence report (PSR) as to the Defendant was prepared. (PSR, cover page).

Though the parties submitted clarifications to the facts in the PSR, neither party

objected to the recommended Guidelines range. (PSR at 33, 17-22 ¶¶ 39-59.) A week

prior to the scheduled sentencing and over eight months after his guilty plea, the

Defendant filed a motion seeking new counsel. [Doc 12.] The Court granted the

Defendant’s motion, appointing counsel on December 5, 2008 [Doc 13], and

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rescheduled sentencing for March 3, 2009. [Doc 15]. Faced with imminent imposition

of a jail sentence, less than two weeks prior to the sentencing and almost a year after

admitting his guilt under oath before this Court, the Defendant filed the instant Motion

to Withdraw Guilty Plea on February 20, 2009 [Doc 16] (“Def. Mot.”). The Court

ordered the United States to respond to the Defendant’s motion by March 20, 2009.

Prior to the United States filing this response, on March 19, 2009, the Defendant

demanded his current counsel withdraw as well. (See Def. Mot. to Withdraw as

Attorney [Doc 18], at 1-2.)

The Defendant provides no legal or factual basis supporting withdrawal of his

guilty plea, particularly at this late date. As discussed below, each of the four factors

the Eleventh Circuit instructs a District Court to consider in evaluating a motion to

withdraw guilty plea weighs against the Defendant’s request. Facing imminent

incarceration in a matter which earned more minor participants a hung jury and lesser

sentence, the Defendant obviously now regrets his strategic decision to forego trial

and admit his guilt. Unfortunately for the Defendant, regret at an impending jail term

is not a basis to withdraw a plea. Because Defendant provides no basis to withdraw

his plea, the Defendant’s Motion to Withdraw Guilty Plea should be denied without

need for an evidentiary hearing.

II. Discussion

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A defendant bears the burden of proving that he is entitled to withdraw his

guilty plea. United States v. Izquierdo, 448 F.3d 1269 (11th Cir. 2006). "There is no

absolute right to withdraw a guilty plea." United States v. Medlock, 12 F.3d 185, 187

(11th Cir. 1994). See also, United States v. Rogers, 848 F.2d 166 (11th Cir. 1988).

Prior to sentencing, after a guilty plea has been entered the defendant has the burden

of showing a fair and just reason for withdrawal of his plea. Fed. R. Crim. P.

11(d)(2)(B). In determining whether the defendant has met his burden, "a district court

may consider the totality of the circumstances surrounding the plea, including 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 government would be prejudiced if the defendant were

allowed to withdraw his plea." United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.

2006) (quotation omitted); United States v. Cesal, 391 F.2d 1179, 1179 (11th Cir.

2004); United States v. Freixas, 332 F.3d 1314 (11th Cir. 2003); United States v.

Najjar, 283 F.3d 1306 (11th Cir. 2002); United States v. Buckles, 843 F.2d 469, 471-

72 (11th Cir. 1988); United States v. Gonzalez-Mercado, 808 F.2d 796 (11th Cir.

1987). See also, United States v. Rogers, 848 F.2d 166 (11th Cir. 1988) (A defendant

who acknowledges guilt when the plea is entered does not have an absolute right to

withdraw his plea, even if he maintains his innocence prior to the final imposition of

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sentence.) The denial of a motion to withdraw a plea is reviewed solely for an abuse

of discretion. Izquierdo, 448 F.3d at 1276. The District Court need not hold an

evidentiary hearing when denying a defendant’s motion to withdraw guilty plea.

Brehm, 442 F.3d at 1298.

A. Defendant Had Available Close Assistance of Counsel, and


Stated Under Oath That He Was Fully Satisfied With His
Counsel’s Services.

Under the first prong of the analysis, the Court considers whether the defendant

had available close assistance of counsel when pleading guilty. Brehm, 442 F.3d at

1987. Here, the uncontroverted record establishes that the Defendant retained and had

available close assistance of respected counsel, Ed Garland and Don Samuel, from

Indictment through his guilty plea. Indeed, Defendant maintained the services of

Garland and Samuel for eight months following his guilty plea, until the eve of

sentencing, when the Defendant requested appointed counsel. Defendant concedes,

as he must, that he had the close assistance of able counsel who represented him at his

plea hearing. (Def. Mot. at 9.) Under oath at the plea hearing, the Defendant

confirmed his satisfaction with the counsel he chose to retain:

THE COURT [To Defense Counsel, Mr. Garland]:


Do both you and Mr. Stoufflet feel you’ve had
sufficient time to discuss this case between
yourselves before deciding to plead guilty to Counts
One and Two of this criminal information?

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THE DEFENDANT: Yes, Your Honor.

MR. GARLAND: Yes, Your Honor.

THE COURT: Okay. Mr. Stoufflet, are you satisfied with the
representation of your lawyer in this case?

THE DEFENDANT: Yes, sir.

THE COURT: Thank you.

(Tr. 24.) Despite his sworn statements at the plea hearing the Defendant now attempts

to manufacture a basis to withdraw his plea where none actually exists. The Defendant

now contends that able defense counsel “pressured him into accepting the guilty plea

once it was proposed to them by the government.” (Def. Mot. at 9.) At the

Defendant's plea hearing, however, not only did the Defendant indicate his satisfaction

with his attorney's representation (Tr. 24), but this Court specifically inquired as to

whether his counsel pressured him into pleading guilty:

THE COURT: Are you pleading guilty because your


attorney, Mr. Garland, talked you into
pleading guilty?

THE DEFENDANT: No, your Honor.

(Tr. 21.) Almost a year later, the Defendant claims his plea should be set aside because

he was under time pressure to decide whether to accept the plea. (Def. Mot. at. 4, 8.)

Again, this Court specifically inquired about that issue at the Rule 11 plea colloquy.

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THE COURT: Do both you [defense counsel] and Mr.


Stoufflet feel you’ve had sufficient time to
discuss this case between yourselves before
deciding to plead guilty to Counts One and
Two of this criminal information?

THE DEFENDANT: Yes, your Honor.

(Tr. 24.)2 Defendant’s thorough and competent representation by able defense

counsels Garland and Samuel, buttressed by Defendant’s admissions under oath

before this Court, clearly establish the availability of competent advice and

representation, and contradict any newfound claim of undue external influence. The

2
Contrary to Defendant’s newfound conclusory claims that he was pressured into a
plea he had little time to consider, the record establishes that the Defendant had months to
contemplate the plea. The government and Defendant had been in plea negotiations for the
better part of a year, and circulated the essential terms of the plea in November 2007, over four
months prior to the guilty plea hearing. (See Correspondence, Ex. One. See also, Def. Mot. Exs..)
Plainly, the Defendant was not rushed or pressured into pleading guilty. That the Defendant
chose to wait until days prior to his imminent trial before accepting the plea shows, if anything,
that any supposed time pressure was the result of the Defendant’s procrastination rather than any
external influence.

Indeed, the United States provided the defense numerous extensions in which to consider
the plea. As the Court is aware, that the Defendant faced a deadline as the trial setting
approached is not unusual. As recognized in the U.S. Sentencing Guidelines, expenditure of
public resources in preparation for trial may affect the government’s recommendations with
regard to a guilty plea. See U.S.S.G. § 3E1.1(b) (explicitly providing that the United States may
withhold certain credit for acceptance of responsibility where a defendant does not timely notify
authorities of his intention to plead guilty, thereby “permitting the government to avoid
preparing for trial and permitting the government and the court to allocate their resources
efficiently”). Particularly in this case, involving eight charged defendants, well over a hundred
boxes of documents, and extensive and complex criminal activity, the United States was more
than generous in allowing the lead Defendant until days before trial to consider whether to
accept a favorable plea agreement including potentially full credit for acceptance of
responsibility.

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Defendant utterly fails to satisfy the first prong of the analysis. See also, United

States v. Walker, 447 F.3d 999, 1004-05 (7th Cir. 2006) (denying motion to withdraw

guilty plea where defendant claimed that he was pressured into a plea.)

B. The Record Establishes that the Defendant’s Guilty Plea Was


Knowing and Voluntary.

A district court is required, before it accepts a plea of guilty, to inform the

defendant of his rights, and to determine that he understands his rights relevant to his

plea of guilty. Fed.R.Crim.P. 11(b). A review of the guilty plea hearing in this case

firmly establishes that the Defendant pled guilty knowingly and voluntarily. Not only

did the Court advise the Defendant of each of his Rule 11 rights, but the Defendant’s

responses to the Court’s questions confirm the Defendant’s comprehension and

appreciation for the meaning and gravity of the hearing. The Court will further recall

the Defendant’s demeanor throughout the hearing. (See Tr. 30-31.) Contrary to the

Defendant’s conclusory claims that “he felt numb and did not fully comprehend his

actions or the magnitude of his decisions” and “was under an inordinate amount of

stress and pressure and was not thinking clearly at the time he accepted the

government’s offer.” (Def. Mot. at 8), the Defendant’s responses and demeanor during

the hearing showed him to be in complete control of his faculties, comprehending

fully the meaning of his actions. During the hearing, this Court elicited from the

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Defendant that no one had coerced him into pleading guilty, or otherwise had

threatened him or made promises to him in exchange for his plea. (Tr. 16-18, 21, 30-

31.)

In addition, the Defendant informed this Court that he was satisfied with his

lawyer's representation. (Tr. 24.) Importantly, the Defendant stated under oath that his

guilty plea was free and voluntary.

THE COURT: Mr. Stoufflet, is your plea of guilty to Counts


One and Two of this criminal information
being entered freely and voluntarily? That is,
of your own free will.

THE DEFENDANT: Yes, your Honor.

THE COURT: Are you pleading guilty because someone has


forced you to plead guilty?

THE DEFENDANT: No, your Honor.

(Tr. ) "There is a strong presumption that the statements made during the [plea]

colloquy are true." Medlock, 12 F.3d at 187. Consequently, a defendant "bears a heavy

burden to show his statements [under oath] were false.” United States v. Hauring, 790

F.2d 1570, 1571 (11th Cir.1986)(quoting United States v. Rogers, 848 F.2d 166, 170

(11th Cir. 1988)). Facing incarceration, the Defendant now changes course, claiming

that he had previously been untruthful at his guilty plea hearing; however, he does not

adequately explain why he swore during the plea colloquy that he committed the

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alleged offense, understood the possible consequences of his guilty plea, and waived

his right to trial.

Moreover, a Defendant’s claim that he lied during the plea colloquy does not

support withdrawal of a guilty plea. Walker, 447 F.3d at 1005 (“[W]e give great

weight to what was said during the change-of-plea colloquy between the defendant

and the judge, and a defendant who presents a reason for withdrawing his plea that

contradicts the answers he gave at a Rule 11 hearing faces an uphill battle to show his

reason for withdrawing his plea is fair and just”) (quotation and citations omitted).

This case is similar to United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003),

and should result in the same denial of defendant’s motion to withdraw plea:

[W]hen a defendant says he lied at the Rule 11 colloquy, he bears a


heavy burden in seeking to nullify the process . . . [A]n appropriately
conducted Rule 11 colloquy can only serve meaningfully if the court is
entitled to rely on the defendant’s statements mad under oath to accept
a guilty plea . . . To view the Rule 11 plea colloquy as a procedural game
in which pieces are moved and manipulated to achieve a result that can
beat the system established for providing due process to the defendant
undermined that very process. And when a defendant asserts, in support
of a motion to withdraw a guilty plea, that he lied in pleading guilty ---
and repeatedly so — he provides an example of such manipulation.

Bowman, 348 F.3d at 417.

In addition, each of the Defendant’s rights was not only discussed during the

guilty plea hearing, but was explicitly disclosed in the plea agreement, which the

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Defendant signed. (Guilty Plea and Plea Agreement [Doc 5] at 3 ¶ 2, 18-19.) Page

three of the plea agreement discusses the Defendant’s rights, and informs the

Defendant that he waives these rights by entering into the plea agreement. Id. at 3 ¶

2. As discussed previously, the Defendant had months to review the terms of the plea

agreement, including the advice of rights. Supra, n.1. The Defendant twice signed the

plea agreement, including a section that attests that the Defendant:

[has] read the foregoing Plea Agreement and [has] carefully reviewed
every part of it with [his] attorney . . . I understand the terms and
conditions contained in the Plea Agreement, and I voluntarily agree to
them . . . No one has threatened or forced me to plead guilty . . . I am
fully satisfied with the representation provided to me by my attorney in
this case.

([Doc 5] at 18-19.)

The Defendant has not pointed to any factual allegation which supports the

contention that he misapprehended the scope of the plea agreement and the guilty plea

hearing. This Court should reject the Defendant’s conclusory statements that he was

under pressure and did not fully understand the consequences of his guilty plea,

particularly in light of the record which clearly establishes that the Defendant was

fully advised of his rights, and that he pled guilty knowingly and voluntarily.

The Defendant further contends that this Court misinformed him about his right

against self-incrimination. (Def. Mot. at 10.) A review of the plea agreement and the

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plea colloquy belies the Defendant’s contention. The plea agreement expressly states

that the Defendant had the right against self-incrimination and that he could choose

to testify on his own behalf, but if he chose not to testify, that fact could not be used

against him:

If the defendant wished, he could testify on his own behalf and present
evidence in his defense, and he could subpoena witnesses to testify on
his behalf. If, however, the defendant did not wish to testify, that fact
would not be used against him . . . The defendant understands that by
pleading guilty, he is giving up all of these rights and there will not be
a trial of any kind.

([Doc 5], at 3 ¶ 2.) Because this Court can look to the plea agreement to determine

if Rule 11 's core concerns were satisfied, as the district court referenced that plea

agreement at the change-of-plea hearing, it is sufficient that the information was

included in the plea agreement. See United States v. Jones, 143 F.3d 1417, 1420 (11th

Cir. 1998). Additionally, during the plea colloquy, this Court reviewed the rights that

the Defendant was giving up by pleading guilty, including the right against self-

incrimination:

THE COURT: And you also waive your right not to be compelled
to incriminate yourself. In other words, should I ask
you any questions as relates to your involvement as
it relates to Counts One and Two of the indictment,
the two counts to which you are pleading guilty, you
must be truthful and tell me exactly what it was you
did in connection with those two offenses. Do you
understand that?

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THE DEFENDANT: Yes, I do.


. . .

THE COURT: Do you also understand that if this case went to trial
you would have the right to confront any and all
witnesses against you, to cross-examine Government
witnesses and, if you wish, to present evidence in
your own behalf, but you would not be required to
do so. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

(Tr. 10-11.) In sum, the record reflects the Defendant understood the nature of the

constitutional protections he was waiving and had a sufficient understanding of the

charges such that he made an intelligent admission of guilt.

Defendant argues that the recently enacted Online Pharmacy Consumer

Protection Act of 2008, 21 U.S.C. 831 (2008), magically renders his guilty plea

involuntary. However, “[t]hat Congress has considered clearer legislation . . . does

not mean that existing laws do not apply. . .” United States v. Quinones, 536

F.Supp.2d 267, 273 (E.D.N.Y. 2006). “[S]tatutes are considered by the courts with

reference to the circumstances existing at the time of the passage. The interpretation

placed upon an existing statute by a subsequent group of Congressmen who are

promoting legislation and who are unsuccessful [or successful] has no persuasive

significance here.” United States v. Wise, 370 U.S. 405, 411 (1962). The fact that the

Congress has passed a bill which would amend the Controlled Substance Act (CSA)

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to more explicitly prohibit the conduct at issue in this case does not invalidate

prosecutions under the then-existing provisions of the CSA nor does it render the plea

involuntary.

C. Withdrawal of Defendant’s Guilty Plea Would Waste Judicial


Resources.

The third factor for the Court to consider in evaluating a motion to withdraw

guilty plea is the waste of judicial resources that would result. Brehm, 442 F.3d at

1298. In this case, the analysis is particularly clear. Permitting withdrawal of the plea

would result in a substantial waste of judicial resources.

The Court has already sat for trial in this matter. Not only has the public

expended resources in Court and jury time during that trial, which extended more than

a week, but the Court has already empaneled a second jury in a subsequent trial that

pled only after juror questioning was completed. Defendant asks the Court at this late

date, over a year after his guilty plea, after two juries were empaneled, and months

after the majority of co-defendants have been sentenced, to convene a third jury and

to have public resources expended in the preparation of yet a third trial. The

Defendant’s motion would require the Court to sit at least two weeks, rehashing

substantially the same evidence as in the first trial, plus additional evidence regarding

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a myriad of attorneys employed by the Defendant and his company in his attempts to

skirt authorities.3 Because the Defendant is now represented by appointed counsel, the

public would bear the substantial expense of having a new attorney extensively

prepare this matter, including reviewing the voluminous documents and other

evidence, and to try the case. To allow the Defendant to withdraw his guilty plea in

the circumstances of this case would undermine confidence in the integrity of judicial

procedures, increase the volume of judicial work, and delay and impair the orderly

administration of justice. See United States v. Sweeney, 878 F.2d at 70.

Instead, Defendant secured the benefits of a plea, and strategically waited for

the completion of trial against others before filing his present motion to withdraw his

plea. If Defendant wanted trial, it should have already been completed with his co-

defendant in March 2008. If Defendant had a bona fide concern regarding his plea, he

should have promptly sought withdrawal and faced trial in March 2008 or with the

jury empaneled in August 2008.4 Instead, the Defendant secured the benefits of a

3
As discussed further below, because willfulness, or the intent to violate the law, is
not an element of the crimes charged, the Defendant’s presentation of his attorneys and their
advice is irrelevant. Moreover, also as mentioned further below, because the Defendant chose to
continue operating his business after being advised that he risked criminal sanction (see PSR ¶¶
29, 32), the Defendant would have no recourse to an advice of counsel defense in any case, even
if one were legally available.
4
Indeed, because on March 10, 2008, this Court continued trial for one week until
March 17, 2008, the Defendant had ample time to seek to withdraw his plea and continue
preparing for trial. If, as he now claims, the Defendant truly wished for trial as a result of the
Court’s ruling on March 7, 2008, the Defendant could have filed his motion to withdraw plea in

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favorable guilty plea, and strategically sat for months while the case proceeded twice

against co-defendants. The result of granting the motion would be a de facto severance

where none is legally warranted. This Court has already spent public and judicial

resources on one trial in this case, and in preparation for a second trial. As discussed

further below, the evidence the Defendant seeks to add, while time consuming, is

irrelevant to the crimes charged, and would result in an even greater waste of judicial

and public resources. Defendant has sat by two opportunities to avail himself of his

right to trial. His gamesmanship in waiting for the results of those trials, and the

concomitant waste of judicial resources, should not be countenanced.

D. Withdrawal of Defendant’s Guilty Plea Would Prejudice the


Government.

As to the fourth prong, the Defendant blithely argues that the government will

not suffer any prejudice. (Def. Mot. at 9.) To the contrary, where, as here, the

Defendant waits almost a year to move to withdraw his plea, especially where he does

so after the case has already been tried, prejudice is manifest. The government has

already been put to its burden in the trial of a co-defendant, and had completed

preparation for a second trial. The preparation for trial and presentation to a new jury

time for trial to commence March 17, 2008. Defendant’s strategic decision to maintain his plea
and await results of the trials against his co-defendants is not a fair and just reason to permit
withdrawal at this time.

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would place an unwarranted burden on important prosecutorial resources when the

defendant has presented no valid grounds for another trial. See United States v.

Collado-Gomez, 674 F.Supp. 426, 429 (E.D.N.Y. 1987), aff'd, 854 F.2d 1315 (2d Cir.

1988) (prejudice not insubstantial where co-defendant tried and convicted and new

trial would be required).

Courts find prejudice against the government based on a defendant’s delay in

filing a motion to withdraw plea. For example, in Brehm, the Eleventh Circuit

affirmed the district court’s finding of prejudice to the government where the motion

was filed eight months after the plea. 442 F.3d at 1298-99. And in United States v.

Mugan, 622 F.3d 622 (8th Cir. 2006), the Circuit Court refused to set aside plea where

the defendant waited until five months after the entry of his plea to file a motion,

holding that: “Guilty pleas should not be set aside lightly.” 622 F.3d at 631 (quotation

omitted).

Here, Defendant’s delay of almost a year exceeds those found prejudicial in

Brehm and Mugan. The defense provides not a single case where a guilty plea has

been withdrawn following a delay of this length. Eleven-and-a-half months is simply

too long a period to support a claim that the plea was made in haste or confusion. See

United States v. Spencer, 836 F.2d at 237 (five weeks not prompt enough to warrant

withdrawal). See also, United States v. Carr, 740 F.2d 339, 345 (5th Cir.1984)

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(twenty-two days not swift enough); Nunez Cordero v. United States, 533 F.2d 723,

726 (1st Cir.1976) (two weeks not quick enough). The Defendant waited until after

reading the PSR's sentence calculation before deciding he was confused about the

ramifications of his guilty plea. Without more, such a twelve month delayed

protestation of confusion does not warrant withdrawal of the plea. See United States

v. Michaelson, 552 F.2d 472, 475-476 (2d Cir. 1977) (defendant's “change of mind”,

two months after plea entered and one day after learning sentence calculation, alone,

is insufficient grounds to grant withdrawal).

Courts have found prejudice to the government in cases where the entering of

a guilty plea and then a subsequent motion to withdraw has made the government's

case more difficult than it would have been if the guilty plea had never been entered.

See, e.g., United States v. Bryant, 640 F.2d 170, 172 (8th Cir. 1981) (finding prejudice

where three trials of co-defendants had already occurred, giving the defendant a

preview of the government's case). Withdrawal of a plea “almost invariably prejudices

the government to some extent and wastes judicial resources.” United States v. Sparks,

67 F.3d 1145, 1154 n.5 (4th Cir. 1995). Here, the prejudice would be extreme,

requiring the Government to prepare for a third criminal trial a number of years after

the original indictment was handed down, over a year since the guilty plea, and after

a trial of a co-defendant with the attendant loss of access to witnesses and evidence,

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and fading memories. As discussed above, the government would be further

prejudiced by the Defendant achieving a de facto severance where none was legally

warranted.

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E. Defendant’s Motion Does Not Suggest Actual Innocence;


Rather, Defendant Seeks to Present a Defense Which Is
Inapplicable, and Which He Strategically Chose to Forego.

The amount of time which has elapsed between the plea and the withdrawal

motion is directly correlated with the amount of evidence a defendant must proffer to

support his motion. See United States v. Barker, 514 F.2d at 222 (supporting evidence

must have considerable force where motion to withdraw follows eight months after

plea); Brehm, 42 F.3d at 1298 (“‘[t]he longer the delay between the entry of the plea

and the motion to withdraw it, the more substantial the reasons must be as to why the

defendant seeks withdrawal’” (quoting Buckles, 843 F.3d at 47).). The Court must

consider why the defenses put forward in the motion to withdraw were not raised at

the time of the original pleading. United States v. Needles, 472 F.2d 652, 656-658 (2d

Cir. 1973). In the instant case, the Defendant proffers little to justify his almost twelve

month delay in seeking to withdraw his plea and nothing which could not have been

asserted earlier.

The Defendant's current protestations do not negate his open admission of guilt

in Court or the factual record supporting that plea. Indeed, the Defendant admits he

did all the acts the United States alleges. (Def. Mot. at 7.) Defendant seeks to

withdraw his plea, however, to air his lament that he spent a fortune on advice from

numerous attorneys, and that he therefore should be absolved from criminal liability.

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This notion, however, fails on three fronts.

First, the Defendant strategically chose to accept the benefits of a favorable plea

agreement rather than attempt to mount an advice of counsel defense. Indeed, defense

counsel clearly disclosed the strategic decision making during the guilty plea hearing.

(Tr. 29-30.) During the hearing, defense counsel augmented the government’s factual

basis with the defense’s version of the case, including the advice the Defendant sought

from counsel during operation of the business. Id. Defense counsel himself noted

during the plea that the government’s motion to exclude the advice of counsel defense

remained pending. Id. Nevertheless, Defendant chose to accept the benefits of the

plea rather than pursue this avenue.5

After seeing the PSR and with sentencing imminent, the Defendant now regrets

his decision. As discussed above, regret at facing incarceration is insufficient reason

to permit withdrawal of a plea. Nevertheless, the Defendant now claims that his guilty

plea was not “knowingly or voluntarily” entered as required by Fed.R.Crim.P. 11(d),

because he was pressured and misled by his prior attorneys, which caused him to be

confused when he pled guilty. Defendant offers no explanation for why he failed to

5
As the Court well knows, once the parties file motions, they are unaware when
the Court may rule regarding them. Contrary to Defendant’s insinuations, the United States was
unaware when the Court might rule on the government’s motion, whether prior to the plea
deadline or even prior to convening trial. Put simply, the plea deadline was set mere days before
Defendant’s looming trial in consideration of the substantial resources being devoted to trial
preparation, without knowledge of when the Court might rule on the government’s motion.

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Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 24 of 29

raise this claim soon after his allocution, or for why he waited close to twelve months

to first assert this claim in his withdrawal motion. This self-serving and conclusory

claim of pressured confusion is unpersuasive, particularly when it is juxtaposed with

his clear statements on the record. See United States v. Sweeney, 878 F.2d at 70.

Second, Defendant should not be permitted to withdraw his plea to present

evidence regarding his attorney advice because advice of counsel is legally irrelevant

to the crimes charged. Following Defendant’s guilty plea, two Eleventh Circuit cases

have only made more clear that “willfulness”, or the specific intent to violate the law,

is not an element of the CSA charges against the Defendant.

In United States v. Green, 296 Fed.Appx. 811 (11th Cir. 2008), the Eleventh

Circuit rejected defendant’s contention that a charge of drug distribution requires the

government to prove that the defendant “willfully” violated the law. In so doing, the

Eleventh Circuit upheld a district court’s refusing to instruct a jury that the

government must establish “willfulness”. The Eleventh Circuit observed that “the

statutory language makes no reference to willfulness, nor to an intent to violate the

law, as a mens rea requirement.” Id. at 841. The Eleventh Circuit noted that the

defendant did “not identify any binding case law holding that willfulness – defined as

a specific intent to disobey the law– is an element of a §841(a)(1) crime.” Green at

816.

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Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 25 of 29

Likewise, in United States v. DeCarty, 2008 WL 4997100 (11th Cir. Nov. 25,

2008), the Eleventh Circuit held:

The narcotics statutes at issue do not contain a ‘willfulness’ element . .


. Although we have noted that the term “willfully” has many meanings
and its construction is often influenced by its context, (citation omitted),
we need not parse its meaning here as the term does not appeal in either
the statutory language of the charged offenses or in the indictment.
Suffice it to say, as we have done before, that the inclusion of the words
“knowingly and intentionally” in the statutory language of the charged
offense ‘tilts against any possibility that Congress intended any
additional scienter requirement.

United States v. DeCarty, 2008 WL 4997100 (11th Cir. Nov. 25, 2008)(quoting United

State v. Polar, 369 F.3d 1248, 1252 (11th Cir. 2004)).

Binding Eleventh Circuit precedent sets forth the elements of the crimes

charged in the Indictment, namely, Possession with Intent to Distribute a Controlled

Substance, 21 U.S.C. §841, and Conspiracy to Violate the Controlled Substance Act,

21 U.S.C. § 846. Neither Sections 841(a) nor 846 contain a “willfulness” element that

requires proof by the government that a defendant had the specific intent to disobey

or disregard the law. To the contrary, to prove the substantive offense of possession

with intent to distribute, the government must establish that the defendant knowingly

or intentionally possessed a controlled substance and intended to distribute it. United

States v. Lopez-Ramirez, 68 F.3d 438, 440 (11th Cir. 1995); United States v.

Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994). In summary, the government need

25
Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 26 of 29

not prove regarding the crimes charged here, conspiracy and possession with intent

to distribute a controlled substance, that the defendant with the specific intent to

disobey the law. Put simply, ignorance of the law is no defense.

Contrary to the Defendant’s interpretation, this Court’s ruling prior to trial in

this matter did not hold otherwise. As stated above, at the time motions in limine were

due to be filed in this matter, the United States filed a motion to exclude all specific

intent defenses, including advice of counsel. Shortly before trial, this Court issued an

order ruling that, “[21 U.S.C. § 841(a)(1)] makes it unlawful for a person knowingly

and intentionally to possess with intent to distribute a controlled substance.” (1:06-

CR-337-7 [Doc 225].)Accordingly, this Court ruled, the charged crime had a specific

intent element, that is, the intent to distribute. Defendant misconstrues this Court’s

ruling, jumping to the conclusion that because government must prove intent to

distribute, his advice of counsel defense would be relevant to the drug charges against

him.

However, advice of counsel regarding legality is irrelevant to whether a

defendant has the intent to distribute. This Court’s ruling did not establish whether the

Controlled Substance Act requires as an additional element the specific intent to

violate the law, that is, “willfulness”. As discussed above, subsequent to this Court’s

ruling, the Eleventh Circuit has more definitely spoken on this issue, holding that

26
Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 27 of 29

“willfulness”, or intent to violate the law, is not an element of the charged CSA

violations. Because the government need not establish whether the Defendant intended

to violate the law, whatever advice of counsel he may have received is simply

irrelevant to the Defendant’s culpability.

Third, even if an advice of counsel defense were relevant to the charges here,

the Defendant factually has no such defense available. While the United States will

not detail a full recitation of facts at this time, the Defendant was aware during the

operation of the business of the opinion of the DEA and of several state authorities

that his conduct was illegal, and was explicitly warned by counsel that the business

invited criminal sanction, yet he chose to continue operating the illegal business. (PSR

¶¶ 29, 32.)

In summary, that the Defendant regrets his strategic decision to forego

attempting an advice of counsel defense provides insufficient reason, particularly at

this late date, to permit him to withdraw his plea. Defendant’s strategic decision was

understandable considering that an advice of counsel defense is legally irrelevant to

the charges against him, and could not be established under the facts of this case.

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Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 28 of 29

III. Conclusion

Because Defendant’s motion fails all four prongs of the analysis provided by

the Eleventh Circuit, the Defendant has not met his burden of establishing a fair and

just reason to withdraw his guilty plea. Defendant’s Motion to Withdraw Guilty Plea

should be denied.

Dated: March 20, 2009.

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)

28
Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 29 of 29

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 5.1B

The foregoing document was formatted in accordance with Local Rule 5.1B

in Times New Roman, 14 point type.

CERTIFICATE OF SERVICE

Today I 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 20th day of March, 2009.

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

29
Case 1:08-cr-00082-CC Document 19-2 Filed 03/20/2009 Page 1 of 3
u.s. Department of Justice
United States Attorney
Northern District of Georgia

Suite 600 Richard Russell Building Telephone (404)581-6000


75 Spring Street, S. W. Fax (404)581-6181
Atlanta, Georgia 30303

June 28, 2007

BY FACSIMILE
Edward T.M. Garland, Esq.
Garland, Samuel & Loeb, P.C.
3151 Maple Drive, N.E.
Atlanta, GA 30305
Facsimile 404/365 5041

Re: United States v. Stoufflet, 1:06-CR-337-1-CC

Dear Ed:

As discussed, attached please find a draft Guilty Plea and


Plea Agreement for your consideration in the above-referenced case.
Be aware that we do not yet have a firm forfeiture amount. As we
discussed, you should expect the amount to be in the range of $1.25
million to $1.5 million. The undersigned will provide you the
exact number when we have the calculation.

Please be aware that the Guilty Plea and Plea Agreement must
be approved by the undersigned's supervisor before it may be
ratified by this office. Understanding that modifications may be
required by the undersigned's supervisor, the attached draft is
provided for your consideration.

Finally, as we discussed, the attached is the most favorable


deal we can make available to your client. As we approach trial,
the United States will be unable to offer your client such
favorable terms. Unless your client enters a guilty plea by close
of business July 6, 2007, we anticipate that we will be unable to
agree to the attached offer.

Sincerely,

DAVID NAHMIAS
UNITED STATES ATTORNEY

LAWRENCE R. SOMMERFELD
ASSISTANT U.S. ATTORNEY

Attachment
Case 1:08-cr-00082-CC Document 19-2 Filed 03/20/2009 Page 2 of 3

Sommerfeld, Lawrence (USAGAN)

From: Sommerfeld, Lawrence (USAGAN)

Sent: Monday, November 19, 2007 9:54 AM

To: Ed Garland; 'Don Samuel'

Cc: Chartash, Randy (USAGAN)

SUbject: RE: Stoufflet. Information and Plea Agreement

Attachments: Stoufflet vNov19.pdf

Ed and Don:

Randy and I hope you both had a good weekend.

Attached please find a revised plea agreement. This draft still awaits approval from my office.

At your request, we have added paragraph 9(b), making clear that all Booker rights are preserved, and an
additional sentence to paragraph 10, making clear that based on the information currently known there does
not appear to be any restitution.

I will be calling Ed momentarily to discuss forfeiture. We are maintaining the language requiring a $1.1 5MM
forfeiture with half to be paid prior to sentencing.

Regards,
Larry

> -----Original Message----­


> From: Don Samuel [mailto:dfs@gsllaw.com]
> Sent: Thursday, November 15,2007 2:15PM
> To: Sommerfeld, Lawrence (USAGAN); Ed Garland
Case 1:08-cr-00082-CC Document 19-2 Filed 03/20/2009 Page 3 of 3

Sommerfeld, Lawrence (USAGAN)

From: Sommerfeld, Lawrence (USAGAN)


Sent: Monday, November 26, 2007 11 :08 AM
To: 'Ed Garland'; 'Don Samuel'
Cc: Chartash, Randy (USAGAN)
Subject: Stoufflet. Plea offer deadline

Ed and Don,

Good morning. I hope you both had great Thanksgivings.

When Don and I spoke Tuesday, I told him that we would be giving a short deadline on our plea offer to
Stoufflet, but I assured him it would not be last week. This is to inform you that to take advantage of the
current terms, your client must enter his plea by Friday November 30 th . If no plea is entered this week, the
terms of our offer will be less advantageous to your client. I hope we can resolve the case on the current
terms, however.

Regards,
Larry