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Case 1:06-cr-00337-CC-JFK Document 218 Filed 03/03/2008 Page 1 of 20

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA ) CRIMINAL NO.

v. ) 1:06-CR-337-CC

CHRISTOPHER STOUFFLET, et al )

Defendants. )

DEFENDANT CHRISTOPHER STOUFFLET’S


RESPONSE TO GOVERNMENT’S MOTION IN LIMINE

Defendant Christopher Stoufflet (“Stoufflet”) urges the court to deny the

Government’s Motion in Limine and permit the defendant to introduce relevant evidence

at trial that portrays his state of mind and his efforts to comply with the law during the

period of time that he operated his company. This evidence is relevant to each of the

charges in the indictment and essential to the presentation of the defendant’s sole defense.

The government’s brief summary of the charges in the indictment is accurate: Chris

Stoufflet, along with two partners, operated an Internet company (“E-scripts”) that

enabled people to seek a doctor’s prescription for weight loss medicine online. After

reading and signing an informed consent form and accurately filling out a detailed

questionnaire, the patient could submit a request for certain medication (primarily

Schedule III and Schedule IV weight loss medications; at no time were any narcotics, or

“sleep aids” made available) to a doctor who would review the questionnaire and either

approve or disapprove the request for a prescription, based on the information furnished

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by the patient (health background, height and weight, blood pressure, other medications

currently being taken). If a prescription was authorized by the doctor, one of numerous

pharmacies owned by entirely independent companies would dispense the prescription

medication to the customer. Various safeguards were installed in Mr. Stoufflet’s system

to prevent patients from abusing the prescription process, such as preventing requests for

refills too quickly, or using anonymous names in the application process. Mr. Stoufflet’s

operation was not a “fly-by-night” company. The company was incorporated and had an

established business location in Atlanta. Dozens of professional employees monitored

the patients’ requests for prescriptions and maintained sophisticated computer data bases

of the patients. Qualified doctors personally reviewed every online prescription request.

The company paid all the required state and federal taxes. The Internet site always

accurately portrayed the identity of the company.

The essence of this prosecution is simple. The government contends that a doctor

may not prescribe medication based on an online application. This argument is based on

the government’s analysis of state regulations or state “policies” in numerous states

around the country (there is no federal law that prohibits doctors from prescribing

medication based on an internet application). Because (according to the government),

various states consider it “improper” or “inappropriate” or “not the proper practice of

medicine” to write a prescription based on an online application, any sale of

pharmaceutical drugs based on such a prescription is “unlawful” and whoever

participates in the sale (the doctor, the internet intermediary, the pharmacy, and the

patient, as well) are all engaged in unlawful drug dealing. In short, according to the

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government, if the doctor and the pharmacist and the internet company do not comply

with various state policies regarding the practice of medicine, they are no different than

any person who sells cocaine or heroin on the street corner. And this is true (according to

the government), even if the doctor or pharmacist or internet company are not even

violating a state criminal law. It is enough, according to the government’s theory, that

the defendants violate a state “policy.”1

Mr. Stoufflet and his partners did everything in their power to ensure that the

company was run in a lawful manner and in accordance with the menagerie of state laws

and regulations that govern the practice of medicine in the fifty states. Indeed, when they

commenced operations in late 2000, it was not the established law in many states that

internet prescribing of Schedule III and Schedule IV drugs was unlawful. Some states

had informal “policies” that discouraged this practice, or labeled it “inappropriate”; some

states had no policy or position on the matter at all; and some states permitted this

practice. Mr. Stoufflet and his partners spent hundreds of thousands of dollars in legal

fees in an attempt to stay current with evolving state laws.

As detailed below, Mr. Stoufflet’s company consulted with, and sought advice

from, the DEA and the FDA (and on one occasion wrote directly to the Department of

Justice), as well as scores of state agencies to ascertain the legality of the internet

pharmacy company. In addition, over the course of the three years that the company was

1
The Defendant has maintained since the inception of this prosecution that, while conceding that
he committed every act set forth in the indictment, he did not commit a federal offense. In a
lengthy Motion To Dismiss, the defense explained why the violation of a state policy or state
administrative regulation may not be transformed into a federal criminal offense (Doc #96).
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in business, E-scripts retained lawyers from Kilpatrick Stockton; Chorey Taylor & Feil;

Gillen, Parker & Withers; and Arent Fox (the leading health care law firm in the country,

headquartered in Washington, D.C.) to provide legal guidance about the company’s

business. An in-house attorney was hired to ensure that at all times the company was

operated in lawful manner. But that’s not all: at one point, the practices of the company

came under the close scrutiny of the FDA in Atlanta, and the agent in charge of the

investigation ultimately concluded, under oath, that the company was run in a lawful

manner, a conclusion that he shared with Mr. Stoufflet and the other owners of the

company.

And that’s not all: the United States Attorney’s Office in the Northern District of

Georgia, through AUSA Sandy Strippoli, also participated in an investigation of the

company (believing, at one point, that certain prescriptions were forged). A search

warrant was executed and the company’s computers were temporarily seized. During the

course of that investigation, AUSA Srippoli agreed to return the computers to the

company with the knowledge that E-scripts would continue with its online prescription

business. And that’s not all: Magistrate Scofield was also aware how the company

operated and he, too, permitted the company to return to business after the FDA

conducted a search.2

Attached to this response are the following Exhibits which exemplify the evidence

that Mr. Stoufflet intends to introduce at trial in support of his defense that he did

everything possible to remain in compliance with the law; that he lacked the mens rea to

2
Eventually, the company was cleared of any misconduct. There had been no forgeries.

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commit any federal crime; and that he always conducted the affairs of the company in

good faith:

EXHIBITS

1. This exhibit is a sample of the checks written by the company to the various

law firms that provided legal advice to the company. The total of the checks is

approximately $750,000.00.

a. Arent Fox (the Washington D.C. health care law firm was paid in

excess of $57,000);

b. Seyfarth Shaw (Atlanta business law firm was paid $8,500)

c. Chorey, Taylor, Feil (Atlanta business law firm $68,000);

d. Mel Hewitt (business lawyer was paid $21,700)

e. Kilpatrick Stockton (Atlanta law firm with health care department,

was paid $14,000, as represented by the checks in this exhibit, an addition

$500,000 in a retainer, as noted in the retainer agreement included in this

exhibit

f. Traub & Associates (Darren Traub, who was also in-house counsel,

was paid $110,000)

g. In addition, while the company was operating, it paid an additional

$1,500,000.00 to Gillen, Parker & Withers and Jerome Froelich to provide

legal advice.

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2. In the fall of 2000, as the company was beginning its operations, Dr. Shure,

one of the doctors associated with the company, wrote to various state medical

boards inquiring into that state’s rules regarding internet prescriptions. This is a

sample of one such letter. In response, some states simply stated that there was no

current policy, such as Arkansas and South Carolina, which are attached.

3. On December 20, 2000, Stoufflet wrote to Buddy Parker, former chief drug

prosecutor for the United States Attorney Office and asked for Mr. Parker’s

guidance on the legality of Stoufflet’s internet prescription business.

4. On December 28, 2000 Chris Stoufflet wrote to the DEA asking about the

legality of internet prescribing.

5. On January 18, 2001, Chris Stoufflet wrote to a local FDA Agent, Paul

Southern, who had interviewed Chris Stoufflet about his operation. In this letter,

Stoufflet advised Southern about his company and advised him that he had

determined from his survey of the states that most states took no position on the

propriety of internet prescribing of Schedule III and Schedule IV medications.

6. On January 30, 2001, FDA Agent Southern advised Mr. Stoufflet that after

conducting his investigation, he was closing the matter.

7. On April 9, 2001, Chris Stoufflet wrote again to the DEA requesting advice

about the legality of internet prescribing of weight loss medicine.

8. On July 26, 2001, a search warrant was executed at E-scripts, based on an

allegation that one of the doctors’ prescriptions were forged. In the search warrant

affidavit, Agent Paul Southern expressly stated that “[E-scripts’] operation

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appeared to be in compliance with FDA laws and regulations in that a physician

was personally reviewing the questionnaires and personally signing the

prescriptions.” (Paragraph 22)

9. A hearing on a Motion to Return the computers that were seized during the

July 26, 2001 search resulted in a hearing in U.S. District Court at which AUSA

Sandy Strippoli was clearly aware of how the company operated (after all, she had

participated in preparing the search warrant application) and was aware that the

computers were ordered by Magistrate Scofield to be returned. Thus, both AUSA

Strippoli and Magistrate Scofield were aware of the fact that the company was

engaged in online prescriptions and permitted the company to return to business.

10. Shortly thereafter, on August 17, 2001, Mr. Stoufflet continued to retain

Kilpatrick Stockton and paid a retainer of $500,000 with the understanding that

the company would provide legal advice about the company’s operation.

Kilpatrick Stockton designated various health care lawyers and former federal

prosecutor Buddy Parker as primary counsel for Chris Stoufflet and E-scripts.

11. Several months later, Mel Hewitt, a corporate lawyer who had long

provided legal advice to Chris Stoufflet and E-scripts, wrote to Kilpatrick Stockton

on behalf of Mr. Stoufflet to arrange for a lengthy meeting with the lawyers at

Kilpatrick Stockton to review the entire company’s operations.

12. On January 15, 2002, Mel Hewitt wrote to Chris Stoufflet reporting to him

about his meeting with the Kilpatrick Stockton lawyers. “[Their] position

remains steadfast that although they cannot find anything you are currently

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doing in the operation of the business to be ‘illegal’, that won’t guarantee an

overzealous prosecutor won’t bring a case against you based on his/her

interpretation of (for example) what constitutes a ‘doctor-patient’

relationship, . . .”

13. Stoufflet remained determined to have adequate business and health care

counsel and wrote to his principal attorney contact at Kilpatrick Stockton, Craig

Betschi, and asked that Kilpatrick Stockton take a more “pro-active” perspective

and be available to provide legal advice about the company’s operations.

14. On April 2, 2002, Mel Hewitt assured Mr. Stoufflet that he would continue

to provide legal advice to the company and would be hiring additional counsel

(Darren Traub) who would be dedicated to the representation of E-scripts.

15. Shortly thereafter, Mr. Stoufflet asked Mr. Hewitt to retain the top health

care law firm in the country, Arent Fox, in Washington, D.C. and have them focus

on the legality of the business of E-scripts.

16. On behalf of Mr. Stoufflet, Mel Hewitt asked the lawyers at Arent Fox

about the scope of the various state laws that regulated the practice of medicine

and whether those regulations governed the activity of the internet companies. In

a separate letter, Hewitt advised Arent Fox that it would be the “go to” firm for all

matters related to internet prescribing of medicine.

17. On April 18, 2002 and June 5, 2002, Arent Fox provided two of the many

detailed legal opinions about the company’s operation. Though Arent Fox

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reviewed numerous aspects of the company’s business, at no point did Arent Fox

state that internet prescribing was a federal crime.3

18. The following week, Mel Hewitt, still engaged as E-scripts’ local business

counsel, outlined in an email to Chris Stoufflet the various projects that he, and the

new dedicated lawyer (Traub) would be reviewing for the company.

19. On the same day, Traub advised Stoufflet that he would ensure that the

principal lawyer at Arent Fox would be looking into EVERYTHING (emphasis in

original).

20. When the new lawyer, Darren Traub, advised Mr. Stoufflet that Nevada

outlawed any internet prescriptions, the company immediately ceased doing any

business with customers in Nevada.

21. On July 1, 2002, Darren Traub began as full-time counsel for E-scripts. He

remained as in-house counsel, overseeing virtually every aspect of the company’s

legal work, for over a year.

22. On July 6, 2002, Mr. Traub began the process of reviewing various legal

aspects of the company’s business and demonstrated that he was, in fact, going to

review virtually all aspects of the company’s practices.

3
The defense acknowledges, of course, that Arent Fox repeatedly expressed cautionary advice
and warned that state law in this field was rapidly evolving and that a careful consideration of all
fifty states’ laws was necessary. The law firm also noted that it could not guarantee that at some
point “regulatory or enforcement” action would not be taken. Nevertheless, at no time did the
firm advise Stoufflet that online prescribing was a federal crime. This is not surprising: No court
had held that online prescribing was a federal crime; and no statute made it a federal crime to
issue a prescription based on an internet application.
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23. On July 11, 2002, Mr. Stoufflet engaged in an email exchange with his in-

house financial office, discussing the retainer paid to Gillen, Parker & Withers

(then known as Gillen Cromwell) in the amount of $1,500,000.00. It is

noteworthy that though Gillen, Parker is renowned for its expertise in criminal

defense, there were no pending charges involving E-scripts at this point in time

and the company was actively engaged in the online prescription business. At no

time did Craig Gillen (former director of the Southeast Drug Enforcement Task

Force), Buddy Parker (former chief of the Atlanta federal drug unit of the U.S.

Attorney’s Office) or Jerome Froelich (former AUSA and nationally known

criminal defense expert) advise Chris Stoufflet, or any other person at E-scripts,

that its business was unlawful (to say nothing of a “federal crime”), or that it

should cease its operations.

24. On July 21, 2002, an internal Arent Fox memorandum reveals the

complication of this area of the law (i.e., online prescriptions). The lawyers

exchanged thoughts about whether the Florida Board of Medicine had adopted a

formal Policy (with a capital “P”) or just a policy. It was also unclear whether

such a “Policy” or “policy,” was equivalent to a “regulation.”

25. On August 29, Chris Stoufflet wrote to other officials in his company

requesting that they “run things by” Jerome Froelich and Arent Fox before making

any decisions.

26. December 17, 2002, Darren Traub wrote to the E-scripts executives,

advising them, once again, that he will handle all the company’s legal affairs.

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This sample of the evidence that the defense intends to introduce illustrates the

efforts that Chris Stoufflet took to ensure that his company operated in an entirely legal

manner. There are hundreds of additional letters, emails and records of communications

between Stoufflet and the lawyers further demonstrating the extent to which he

endeavored at all times to conduct his business lawfully.

The government’s Motion argues that none of this evidence has any relevance.

The government posits that this entire case can be resolved without a single inquiry into

the extent to which Chris Stoufflet endeavored to assure that his operation was conducted

in an entirely lawful manner, through his contacts with the DEA, the FDA and the money

he spent to retain top-notch lawyers to ensure that his company would comply with all

state and federal laws. The government’s motion rests on the improper assumption that

there is no defense regardless if the defendant acted in good faith, in reliance on advice of

counsel, or without any culpable mens rea. The government fails to acknowledge, for

example, that at the time that Chris Stoufflet started E-scripts, not a single federal

prosecution anywhere in the country had been brought for online prescribing against a

company whose business model resembled Stoufflet’s. According to the government, the

fact that a federal magistrate, an Assistant United States Attorney, an investigating agent

for the FDA, and scores of highly trained attorneys were unaware that it was a federal

crime to prescribe medicine based on an online contact with the patient – despite the fact

that virtually nobody was aware that this was a federal crime – it is still perfectly

permissible to present this case to a jury by posing the simple question, “did he do it, or

didn’t he?”

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The government’s legal argument is wrong.

In a wide variety of circumstances, the Eleventh Circuit and the United States

Supreme Court have held that a defendant may not be found guilty of a federal crime

unless it can be proven beyond a reasonable doubt that the defendant acted with culpable

mens rea.

In some cases – and the defendant will argue at trial that this is such a case – the

government is required to prove that the defendant acted with knowledge that his conduct

was expressly forbidden by the law. See, e.g., Cheek v. United States, 498 U.S. 192

(1991). This is the rule in circumstances, such as this case, where the laws are highly

complex and a prosecution without proof of mens rea would risk ensnaring a

businessman who intended to comply with all relevant laws on a novel interpretation of

the law. See also Ratzlaf v. United States, 510 U.S. 135 (1994); United States v. Adames,

878 F.2d 1374 (11th Cir. 1989); United States v. Morris, 20 F.3d 1111 (11th Cir. 1994).

As Judge Edmondson once wrote (invoking “A Man For All Seasons”):

The law is a causeway upon which, so long as he keeps to it, a citizen may walk

safely. . . To be free of tyranny in a free country, the causeway’s edges must be

clearly marked. The exercise of federal government power to criminalize conduct and

thereby to coerce and to deprive persons, by government action, of their liberty,

reputation and property must be watched carefully in a country that values the

liberties of its private citizens. Never can we allow federal prosecutors to make up the

law as they go along.

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United States v. Brown, 79 F.3d 1550, 1562 (11th Cir. 1996). One of the central tenets of

American legal jurisprudence is that “[l]iving under a rule of law entails various suppositions,

one of which is that ‘(all persons) are entitled to be informed as to what the State commands or

forbids.’ ” Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (quoting Lanzetta v.

New Jersey, 306 U.S. 451, 453 (1939).

The government’s suggestion that the absence of the term “willfully” in the statute

eliminates any culpable mens rea element disregards settled law in this Circuit. In United

States v. Grigsby, 111 F.3d 806 (11th Cir. 1997), for example, the statute at issue

contained no ”willful” requirement, yet, the Eleventh Circuit held that the government

was required to prove that the defendant was aware of the specific laws and regulations

that he violated and knew that he was engaged in criminal conduct.

Moreover, the United States Supreme Court has held that a statute that contains no

“willfullness” requirement may still require the government to prove that the defendant

was aware of the specific law he is charged with violating – that is, that the defendant

was aware that his conduct was illegal. Liparota v. United States, 471 U.S. 419 (1985)

(construing the Food Stamp Act, which contains no requirement that the defendant act

willfully, and requiring that the government prove that the defendant was aware of the

law’s requirements and prohibitions). See also United States v. United States Gypsum

Co., 438 U.S. 422 (1978) (interpreting Sherman Antitrust Act, which contains no explicit

mens rea requirement, but requiring, nevertheless, a culpable state of mind).

Often, what dictates the level of mens rea which the government is required to

prove is the complexity of the underlying regulations that the defendant is charged with

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violating. Thus, in situations with complex regulatory schemes – such as the tax code –

the government is required to prove that the defendant acted with a higher degree of

knowing culpability. In Cheek, the Supreme Court held that the government would be

required to prove that the defendant had the specific intent to violate the law, knowing

what the law required and what it prohibited, and that the defendant’s belief that he was

in compliance with the law – even if the defendant’s belief was objectively unreasonable

– was a complete defense.

Consider the complexity of this law, not just on its face, but also the novelty of the

theory of prosecution. On its face, the Controlled Substances Act does not apply to

doctors who issue prescriptions for controlled substances. Presumably, doctors are aware

of the myriad of requirements that govern their practice. Yet, as the evidence in this case

will demonstrate, in part because of the novelty of the Internet itself, there was no clear

governing rule about the propriety/legality of prescribing medication (particularly

Schedule III and IV controlled substances) based on an online questionnaire. Many states

did not even suggest that it was illegal or inappropriate. Some states simply hadn’t

considered the issue in a formal manner. Other states had “policies” (with a small “p”)

which were informal advisory opinions. There was (and still is) no federal law relating to

the legality of online prescriptions. A more complex set of conflicting and inconsistent

regulations without any uniform federal standard is hard to imagine. And the way in

which these various state regulations, policies and interpretations would implicate the

federal Controlled Substances Act was completely untested.

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Thus, on the face of the law itself, the complexity and uncertainty of the law

mandates that a more rigorous mens rea requirement be imposed. The government’s

suggestion – that the government should not be required to prove any culpable mens rea

is unconscionable.

Looking beyond the face of the statutes and regulations, the fact that professionals

in the health care and legal fields were incapable of predicting how the laws would be

interpreted further supports the need for the most heightened mens rea requirement.

These principles apply in cases of money laundering and controlled substances

prosecutions.

In United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997), the defendant was charged

with bankruptcy fraud and money laundering on the basis of his failure to disclose during his

bankruptcy proceeding that he had received certain money and deposited some of those funds in

a bank account he controlled through an unincorporated business he managed. The defendant's

bankruptcy attorney testified that he was aware of the existence of the unincorporated business

and was remiss in failing to inquire further and determine if its existence should have been

disclosed to the bankruptcy court. This evidence was sufficient to prompt an "advice-of-counsel"

instruction and the failure to instruct the jury on this defense was error.

In United States v. Caseer, 399 F.3d 828 (6th Cir. 2005) , the Sixth Circuit considered

whether a “mistake of law” defense was appropriate in a case involving a unique violation of the

federal Controlled Substances act. Khat is a substance that contains both cathinone and cathine,

both of which are controlled substance. Khat is a vegetation that is frequently chewed

(apparently like chewing tobacco) by people in Africa, the Middle East and elsewhere. The

Sixth Circuit reversed the defendant’s conviction in light of the failure of the government to

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prove that he had the requisite mens rea to commit the offense. The general rule that citizens

are presumed to know the requirements of the law is not absolute, the Court held, and may be

arrogated when a law is so technical or obscure that it threatens to ensnare individuals engaged in

apparently innocent conduct. To presume knowledge of such a law would violate a core due

process principle, namely that citizens are entitled to fair warning that their conduct may be

criminal. Outlawing “cathinone” and “cathine” did not provide clear warning that khat was

illegal to possess. To overcome this flaw in the statute, the court held that the government

would be required to prove actual knowledge that the possession and importation of khat

was illegal. The evidence was insufficient to prove the defendant’s actual knowledge in this

case.

Thus, the government’s argument that money laundering and controlled

substances cases are automatically offenses that require no proof of mens rea is overly

simplistic. Given the allegations in this case, the government, as in Caseer, must prove

that the defendant was aware that his conduct was unlawful and conducted his affairs knowingly,

in an unlawful manner.4

Needless to say, at the core of the government’s argument is the adage, “Ignorance of the

Law Is No Defense.” While this is a handy slogan for non-lawyers, as with so many simplistic

maxims, reliance on them by courts is hardly appropriate. Indeed, the notion that ignorance of

the law is no defense has been rejected by countless Supreme Court cases, as noted above,

4
The government’s reliance on United States v. Dohan, 508 F.3d 989 (11th Cir. 2008) is
meritless, as well. In any money laundering case, the government must prove that the defendant
knew that the money that was involved in the transaction was “dirty” or, more precisely, the
proceeds of some felonious activity. What Dohan held is that the government is not required to
prove that the defendant knew that transacting in dirty money is itself a crime. That is obvious.
By analogy to this case, however, what the government must prove is that Stoufflet knew that the
money was derived from felonious activity. Under the government’s myopic reading of that
decision, the defendant need not even know the money was dirty. That is plainly wrong.
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including Cheek v. United States, supra; Ratzlaf v. United States, supra; and scores of Eleventh

Circuit cases that rely on those decisions. Even a first year law student knows that the difference

between a mistake of fact and a mistake of law is often blurred by the existence of legal

preconditions that must exist in order for a crime to be committed. Consider the crime of

adultery, for example: if a defendant marries a woman, believing that he has accomplished a

divorce from his first wife, is it a “mistake of fact” or a “mistake of law” if it turns out that the

first divorce was somehow defective and he is still married to his first wife? In a trespass case, is

it a mistake of fact or a mistake of law if the defendant contends that he believed that he had a

valid easement that entitled him to occupy property that actually belonged to his neighbor?

In this case, was it a mistake of fact, or a mistake of law, that Chris Stoufflet did not

know (or appreciate the significance of) various state administrative regulations and medical

board policies that urged, or in some instances required, doctors to conduct in-person diagnoses

of patients before prescribing weight loss medication? If he believed that the State of South

Carolina, for example, had not taken a position on online prescriptions, is that a mistake of fact

or a mistake of law? This troublesome question is particularly irksome when one considers that

the various policies of the fifty state medical boards are not codified in the same manner as a

criminal law.

And “irksome” hardly describes the situation when the court considers the fact that even

the FDA agent who initiated this investigation told Stoufflet that online prescribing of

medication is not illegal! See United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990); United

States v. Funches, 135 F.3d 1405 (11th Cir. 1998); United States v. Eaton, 179 F.3d 1328 (11th

Cir. 1999); United States v. Thompson, 25 F.3d 1558 (11th Cir 1994); Cox v. Louisiana, 379 U.S.

559 (1965). These cases, which explore the concept of entrapment by estoppel, explain that even

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in a strict liability offense, where absolutely no mens rea is required to be proven at all, a

defendant’s reliance on the statement of a public official that his conduct is legal provides a

defense to criminal charges.

Finally, the Supreme Court and other courts have held that to the extent that a statute is

vague or subject to varying interpretations, this vagueness can be cured by requiring the

government to prove that the defendant’s violation of the law was intentional and willful, thus

protecting citizens from prosecution for conduct that they did not realize was criminal. In this

case, only by requiring the government to prove that the defendant willfully violated the law –

and by permitting the defendant to introduce evidence that he did not willfully violated the law –

can the inherent uncertainty of the law be tolerated.

The right of a defendant to present all relevant evidence in support of his defense is a

core principle inherent in the Due Process Clause. See Holmes v. South Carolina, 547 U.S. 318

(2006) (reversing conviction where defendant was barred from introducing evidence that

demonstrated his innocence); United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) (reversing

conviction where trial court barred defense from introducing evidence that demonstrated that he

lacked the mens rea to commit the offense); United States v. Ethridge, 948 F.2d 1215 (11th Cir.

1992) (reversing conviction where evidence that negated defendant’s mens rea was improperly

excluded).

The Eleventh Circuit has set forth the rules governing the availability of the Advice of

Counsel defense in numerous cases (catalogued in SAMUEL, ELEVENTH CIRCUIT

CRIMINAL HANDBOOK, § 92 (2007)). See United States v. Eisenstein, 731 F.2d 1540 (11th

Cir. 1984); Eleventh Circuit Pattern Jury Instruction (Criminal) Special Instruction #18 (2003).

What is required is proof that the defendant fully revealed to his lawyers the nature of his

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business and sought their advice about the legality of his conduct. The evidence in this case

overwhelmingly supports this defense and the government’s effort to bar the presentation of

evidence in support of the defense must be rejected.

The government’s Motion in Limine should be denied.

Respectfully submitted,

GARLAND, SAMUEL & LOEB, P.C.

DONALD F. SAMUEL
Ga. State Bar #624475
3151 Maple Drive, NE
Atlanta, Georgia 303035
404-262-2225
Fax 404-365-5041
dfs@gsllaw.com

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Case 1:06-cr-00337-CC-JFK Document 218 Filed 03/03/2008 Page 20 of 20

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA ) CRIMINAL NO.

v. ) 1:06-CR-337-CC

CHRISTOPHER STOUFFLET, et al )

Defendants. )

CERTIFICATE OF SERVICE

I hereby certify that I have this date served the within and foregoing Defendant’s

Response to Government’s Motion in Limine which will automatically send e-mail notification of

such filing to the attorneys of record.

This the 3rd day of March, 2008.

DONALD F. SAMUEL
Ga. State Bar #624475
3151 Maple Drive, NE
Atlanta, Georgia 303035
404-262-2225
Fax 404-365-5041
dfs@gsllaw.com

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