269: Transcript of Co-Defendnat, DR Smith's Jury Questions - 03-21-2008

Case 1:06-cr-00337-CC-JFK Document 269 Filed 08/18/2008 Page 1 of 32
1 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
2 ATLANTA DIVISION
3
UNITED STATES OF AMERICA, )
4 )
)
5 -vs- ) Indictment No. 1:06-CR-337-07-CC
) Excerpt
6 ANDRE D. SMITH, M.D., ) Questions from the Jury
Defendant. )
7
10 Excerpt of the Jury Trial Proceedings

Before the Honorable Clarence Cooper
11 March 21, 24, 25, and 26, 2008
Atlanta, Georgia
12
13
14
15 APPEARANCES OF COUNSEL:
16 On behalf of
the Government: Randy S. Chartash,
17 Assistant United States Attorney
18 Lawrence R. Sommerfeld,
Assistant United States Attorney
19
On behalf of
20 the Defendant: Charles R. Floyd, Jr., Esq.
21
22
23
Amanda Lohnaas, RMR, CRR
24 Official Court Reporter
United States District Court
25 Atlanta, Georgia
1 * * * * *
2 (Friday, March 21, 2008, 4:25 p.m.; jury not
3 present.)
4 THE COURT: Counsel, I received a very disturbing
5 note, I'm sure you all have read it. You all haven't read it?
6 MR. FLOYD: Yes.
7 MR. CHARTASH: Yes, Your Honor, we have.
8 THE COURT: Let me read it into the record. And I'm
9 assuming it's from the foreperson, it is signed by someone, I
10 can't make out the name, but the note reads as follows: "Are
11 we deciding based on Internet policies or general" -- what's
12 that word?
13 MR. FLOYD: Acceptable.
14 THE COURT: " -- acceptable or based on the law?"
15 So I am going to send out a copy of the charge. They
16 did make an oral request for the charge. But I think my
17 response is you have to take the law as reflected in the charge
18 and apply it to the facts of the case. And if they have
19 further questions then I might have to more focus on this. I'm
20 scared to get out here because the first question, Internet
21 policies and general procedures, and, of course, the medical
22 standard is embodied in the charge.
23 MR. SOMMERFELD: That's the --
24 THE COURT: That's why I don't want to -- we don't
25 have anything in my charge about Internet policies.

1 MR. CHARTASH: Can we disabuse them of that?
2 MR. SOMMERFELD: Right. Can we disabuse them of that
3 notion and say this is not to be decided on Internet policies?
4 THE COURT: If you all can agree.
5 MR. FLOYD: No, sir.
6 THE COURT: What do you want?
7 MR. FLOYD: I think you tell them you've given them
8 the law they have to apply to the case.
9 THE COURT: Right now I have to do that, we'll see
10 where that leads, that may clarify. And I'm just going to say
11 read the charge to answer the question, because your standard
12 is reflected, it doesn't say anything about Internet policies.
13 MR. SOMMERFELD: Right, can we tell the jury that?
14 MR. FLOYD: Judge, I think we have given them the
15 charge. Anything other than that would necessarily amplify
16 whatever else you put in the --
17 MR. SOMMERFELD: Your Honor, it's not unnecessarily
18 amplifying. They are asking for further instruction and they
19 said do we decide based on Internet policies, and I don't think
20 it's a matter of debate that that's not the case and so to
21 disabuse them from that is proper under the law.
22 THE COURT: Well, I had decided to do what I had
23 suggested.
24 MR. SOMMERFELD: Okay, thank you.
25 THE COURT: Let's try that first. I know where you

1 are going but let me, I'm scared on appeal -- I better take it
2 one step at a time. Let me write out, I want to read to you
3 all what I'm going to send out, let me write it out first.
4 (Pause in the proceedings.)
5 THE COURT: Let me read these two. The first one I
6 have before me is just definition of conspiracy, they want to
7 define conspiracy. The charge will handle that.
8 The second one: "What year did the federal
9 government regulate the Internet pharmacies?" Didn't you all
10 get into that, when the government started regulating this
11 thing?
12 MR. CHARTASH: When?
13 MR. FLOYD: The C.F.R. reg was entered --
14 THE COURT: You know, I can't get into that. They've
15 got to rely on their own memory on that. As to the first one,
16 it addresses the charge. So I'm going to send out a note
17 telling them that -- I think we better recess because she's got
18 to put the charge together. Bring them in so I can just tell
19 them we're going to recess and on Monday morning we'll have a
20 copy of the charge which covers all the questions you've sent
21 to the Court.
22 The foreman of this jury is pretty prolific, Mr.
23 Chartash.
24 MR. CHARTASH: Yes, Your Honor, it appears as
25 though --
1 THE COURT: Seems we'll get some more notes.
2 (Jury returned to the courtroom at 4:31 p.m.)
3 THE COURT: Ladies and gentlemen, please be seated.
4 I am in receipt of your three notes and I do think once we
5 provide you with a copy of the Court's charge so that it can be
6 read in its entirety to everyone then that will address your
7 concerns as reflected in the notes you've sent. But we won't
8 be able to do that until Monday because the court reporter has
9 to transcribe my charge.
10 So we are going to recess at this time and on Monday
11 morning after everybody is here I will provide you with a copy
12 of the Court's charge that does address each and every question
13 you've raised and then you are to resume your deliberations.
14 But I want the entire charge read by the foreperson or someone
15 designated by the foreperson because I don't want anybody to
16 take anything out of context or give undue emphasis to
17 something. But make sure the entire charge is read. Who is
18 the foreperson?
19 Thank you, Madam Foreperson. State your name for the
20 record.
21 THE FOREPERSON: Lysaida Moore.
22 THE COURT: Okay, we'll be in recess until 9:30
23 Monday morning, at which time I'll provide you with a copy of
24 the Court's charge. Thank you and good day. And please don't
25 discuss this case with each other, nor with anyone else.
1 A JUROR: Not now?
2 THE COURT: Not now, it's over, you'll resume on
3 Monday morning, don't discuss it.
4 (Jury retired from courtroom 4:33 p.m.)
5 THE COURT: Well, good day, gentlemen. You all be
6 here at 8:30 -- you all be here at 9:00, please.
7 (Proceedings adjourned at 4:35 p.m.)
8 * * * * *
9 (Monday, March 24, 2008, 11:40 a.m.; jury not
10 present.)
11 THE COURT: Thank you, please be seated.
12 MR. FLOYD: Good morning, Judge.
13 THE COURT: Good morning, Mr. Floyd, Mr. Chartash,
14 Mr. Sommerfeld.
15 As you know, we received two separate communications
16 from the foreperson of this jury, one in which she enumerates
17 five questions, and the other in which she wants to know about
18 recent laws or clarifications to federal law.
19 Okay, as to -- let me just read, one of the notes
20 reads as follows: "Have there been more recent laws or
21 clarifications to federal laws that makes the gray area less
22 gray?"
23 I'm just going to tell them to disregard -- that they
24 are to apply the law as given by the Court. Anybody have any
25 question of that? They have the law before them that applies
1 to this case. Mr. Floyd?
2 MR. FLOYD: No, sir, that's an appropriate response,
3 we feel, Judge.
4 MR. SOMMERFELD: Yes, Your Honor, that's fine, if you
5 tell them to apply what you've told them.
6 THE COURT: Yes, told them the law. And let's review
7 the other note, which lists five questions, the first being:
8 "What are the online regulations for prescribing controlled
9 substances?"
10 And you all correct me if I am wrong, I don't think
11 anyone introduced any evidence regarding online regulations.
12 MR. SOMMERFELD: Your Honor, there was the DEA
13 circular, there was the FSMB which the defense put in, there
14 was the Georgia regulations. I think overall the theme with
15 all of these goes back to what they were asking on Friday about
16 are they applying some sort of Internet law or the law as
17 instructed, the general accepted.
18 So, frankly, we would ask as to all these questions,
19 Your Honor mentioned on Friday one step at a time, you'd give
20 them the instructions, at this point to disabuse them of the
21 notion that there's some separate Internet law, that you've
22 instructed them as to what the law that they must apply is and,
23 if necessary, if Your Honor wishes, to repeat the instruction
24 as far as the usual course of professional practice and the
25 fact that we're talking about the standards of medical practice

1 generally accepted and recognized in this country.
2 They seem to be asking a lot about Internet law, like
3 they did on Friday, and I think it's time to remind them that
4 they have sworn to apply the law that you instructed them.
5 THE COURT: Which goes back to what I said, they
6 already have the law, I'll re-emphasize you have the body of
7 law you are to apply to the facts.
8 MR. SOMMERFELD: Right, that there is no separate
9 Internet law.
10 MR. FLOYD: Judge, the Defense position is that the
11 Court should simply tell the jury as to all of these inquiries
12 that they have been given the law to apply to this case,
13 period.
14 THE COURT: That's what I -- yep. You know, I think
15 three, it seems like the medical standard has been made the
16 legal standard based on the indictment, I was looking at three
17 that posed a problem, and I just was not -- there's one
18 standard that was the standard as testified to by the expert
19 doctors. I think we come out much better if we try to address
20 each of these questions which may encompass the bottom line,
21 that is, apply the law to the facts of the case.
22 MR. FLOYD: If it please the Court --
23 THE COURT: Because as to one and two --
24 MR. FLOYD: Judge, if I might, with regard to the
25 Court's last comment about the standard testified to by the

1 expert doctors, I think that would go beyond what's required to
2 respond, because if you recall, Dr. Smith also testified to
3 that standard, not as an expert, but as a doctor he testified
4 to what that standard was and I wouldn't want to magnify the
5 significance of the expert testimony without also stating that
6 Dr. Smith testified as to that standard as well, because they
7 can choose to accept whatever.
8 THE COURT: Okay.
9 MR. SOMMERFELD: Your Honor, in that regard I think
10 the instruction on the --
11 THE COURT: Let me do it this way because I'm a
12 little confused. Mr. Floyd, what's your response to question
13 number one: "What are the online regulations for prescribing
14 controlled substances?" Let me hear from both of you so I can
15 make some final decision.
16 MR. FLOYD: Judge, it would be the Defense position
17 that as to that specific inquiry the Court will say I have
18 given you all the appropriate law that you are to apply in this
19 matter, period.
20 THE COURT: And that would be your position as to
21 number two?
22 MR. FLOYD: That would be my position as to number
23 one, that would be my position as to number two. Actually,
24 that would be my position as to each question. I think to go
25 into any detail to magnify any specific part of the charge that
10
1 you actually spoke about and that's my concern.
2 THE COURT: Thank you. Let me hear from you, Mr.
3 Sommerfeld.
4 MR. SOMMERFELD: Your Honor, the Government's
5 position would be that, yes, the jury has sworn to apply the
6 law as instructed. And in response to this question, the law
7 as instructed, "What are the online regulations for prescribing
8 controlled substance," that, as instructed, it is illegal to do
9 so outside the usual course of professional practice, and as
10 instructed on page 20 the usual course of professional practice
11 is measured in accordance with --
12 THE COURT: You're referring to my charge?
13 MR. SOMMERFELD: Yes, standard of --
14 THE COURT: You seem to be saying one and the --
15 MR. SOMMERFELD: -- generally recognized and --
16 THE COURT: -- same thing.
17 MR. SOMMERFELD: The emphasis from here is that they
18 be told that it's the generally recognized and accepted
19 standards, that there's no separate online standard.
20 THE COURT: Okay. Let me hear from you.
21 MR. FLOYD: Judge, again, I think without recharging
22 them you magnify the significance of one particular part of the
23 charge.
24 THE COURT: No, no, I didn't say recharge it.
25 MR. FLOYD: Right.

11
1 THE COURT: What I'm trying to say, as I see it
2 there's a standard, the one testified to by the doctor
3 physicians, and you said the one also testified to by your
4 client?
5 MR. FLOYD: Yes.
6 THE COURT: Okay. And those standards are to be
7 applied whether it's online or offline. Can I --
8 MR. FLOYD: I think that goes beyond what the Court
9 needs to tell them. That would be our position.
10 THE COURT: Okay.
11 MR. FLOYD: But, yes, I agree with the substance of
12 what the Court is saying.
13 THE COURT: Okay, let me give it a little thought and
14 I'll let you know what I'm going to do. Thank you.
15 MR. FLOYD: Thank you, Judge.
16 (Recess, 11:47 a.m. to 12:10 p.m.)
17 THE COURT: This is my reply.
18 Having read your question, the Court can only state
19 the following: The only standard that you are to apply to the
20 facts of this case is the one set forth in my charge. You are
21 to take this standard and apply it to the facts as you find
22 from the evidence presented during the trial. One fact --
23 strike that, let me start over again. One fact that you must
24 determine is the standard of medical practice that is generally
25 recognized and accepted in the United States, period.

12
1 MR. CHARTASH: One fact?
2 THE COURT: Mr. Thomas, please carry that to the jury
3 room and we'll await further word, if not a verdict, from the
4 jury. Thank you and I will call you when we hear from the
5 jury.
6 (Jury deliberations ensued.)
7 * * * * *
8 (Tuesday, March 25, 2008, 12:25 p.m.; jury not
9 present.)
10 THE COURT: Thank you, please be seated. We're
11 making progress.
12 Mr. Chartash, Mr. Sommerfeld, Mr. Floyd, and
13 Mr. Smith, I received a note from the foreperson. There are
14 two questions written down. The first question being: "Are
15 the DEA Exhibit No. 34 regulations the law?" The answer is no.
16 Second question: "Are the standards of medical
17 practice considered the law?" No.
18 With respect to question number two, you should
19 always remember that my charge, two copies of which were given
20 to you, constitutes the law in this case.
21 And those are the questions and those are my
22 responses. Does anyone disagree? Mr. Chartash? Mr. Floyd?
23 MR. FLOYD: No, Judge.
24 MR. SOMMERFELD: Your Honor, the only comment I have
25 is on question number two they asked are the standards of

13
1 medical practice considered the law. It's part of your charge
2 regarding the practice, so I might ask, instead of just saying
3 no, other than as instructed to you, other than as they fit
4 into my instructions, no, they are not separately the law. But
5 the instructions include that --
6 THE COURT: Standard?
7 MR. SOMMERFELD: Yes, to be lawful, treatment of a
8 patient must be in accordance with the standards of medical
9 practice generally recognized.
10 THE COURT: Mr. Floyd?
11 MR. FLOYD: Judge, I think the Court's initial
12 response is the appropriate. The answer to the question posed
13 is no and they have been given all of the law that applies in
14 this case. I think that's the appropriate response. I mean
15 included in that is that charge so, I mean, they have it in
16 front of them.
17 THE COURT: Well, what if I just modify it and say
18 that you should always remember that my charge, which includes
19 the standards, is the law?
20 MR. FLOYD: I would not take exception to that,
21 Judge.
22 THE COURT: Okay, I'm going to amend it.
23 MR. SOMMERFELD: Thank you, Your Honor.
24 THE COURT: Thank you.
25 (Recess, 12:27 p.m. to 12:55 p.m.)

14
1 THE COURT: Mr. Floyd? You want to hear from the
2 Court again before I send this out?
3 MR. FLOYD: Thank you so much, Judge. Judge, out of
4 an abundance of caution, when I went back I reviewed my notes
5 and I looked at the particular language in that charge and the
6 question and --
7 THE COURT: Do you remember what I told the jury
8 about notes?
9 MR. FLOYD: I wasn't listening during that part of
10 the charge.
11 THE COURT: Don't rely on your notes; rely on your
12 memory. If your memory is different from your notes, rely on
13 your memory. Tell me what your notes say, then I want to hear
14 about your memory.
15 MR. FLOYD: My concern was that the response might
16 somehow suggest that there is a law which codifies or
17 encapsulates the standard. There is no law regarding the
18 standard and the Court says no to that inquiry. But I was
19 wondering if the remainder of that commentary to the jury might
20 somehow tell them that that was the law.
21 THE WITNESS: No.
22 MR. FLOYD: The only reference to the standard is on
23 page 17 of the Court's --
24 THE COURT: Let me say, I agree with you. Let me
25 read to you what I plan to say. With respect to question

15
1 number two: You should always remember that my charge, which
2 refers to the standard, is the law in this case.
3 MR. FLOYD: Okay.
4 THE COURT: It's in the charge.
5 MR. FLOYD: Okay, that's fine, Judge.
6 THE COURT: I made that distinction because I knew
7 you were going to come back with this.
9 THE COURT: Okay. Thank you. You guys go to lunch
10 and have a good lunch, don't worry about this case, just come
11 back after lunch. The jury is eating, they're having a good
12 time.
14 MR. SOMMERFELD: Thank you, Your Honor.
15 (Recess, 1:00 p.m. to 3:03 p.m.)
16 THE COURT: Thank you, please be seated. Let me hear
17 from counsel.
18 MR. SOMMERFELD: Your Honor, we saw the question that
19 was given and your draft response.
20 THE COURT: My proposed response.
21 MR. SOMMERFELD: Proposed response, which we agree is
22 accurate and -- but we think in addition, they're asking about
23 what is the usual course of professional practice, what if we
24 can't agree, you have an instruction which specifically defines
25 it, and so our proposal is maybe in addition --

16
1 THE COURT: Which instruction?
2 MR. SOMMERFELD: The last paragraph of page 20,
3 what's numbered page 20.
4 THE COURT: I don't have the charge. Read it.
5 MR. SOMMERFELD: "A controlled substance is
6 prescribed by a physician in the usual course of a professional
7 practice and therefore lawfully if the substance is prescribed
8 by him in good faith as part of his medical treatment of a
9 patient in accordance with the standard of medical practice
10 generally recognized and accepted in the United States."
11 That's the paragraph that defines what is the usual
12 course of professional practice.
13 THE COURT: Thank you, and that's on page what?
14 MR. SOMMERFELD: It's numbered page 20 in your
15 instructions and it's the final paragraph.
16 THE COURT: The final paragraph on page 20, I'll look
17 at it when I go back. Thank you.
18 MR. SOMMERFELD: Since they're asking for the legal
19 instruction we ask you give it.
20 THE COURT: No problem. Mr. Floyd?
21 MR. FLOYD: I want to look at what he just said,
22 Judge.
23 THE COURT: Yes, just read it.
24 MR. FLOYD: Because that doesn't look like page 20 on
25 mine -- sorry, I have the wrong one. That doesn't work.

17
1 MR. SOMMERFELD: It's the page that you entitled Good
2 Faith.
3 THE COURT: Yeah, I got it, I know where it is. I've
4 got it in my chambers, I just didn't bring it to the bench with
5 me.
6 MR. SOMMERFELD: Thank you, Your Honor. Do you need
7 to see this?
8 MR. FLOYD: Yes, I need to see it.
9 THE COURT: Show it to him.
10 MR. CHARTASH: It's the last paragraph.
11 MR. FLOYD: I think that is appropriate, Judge, but I
12 think what the Court has -- I don't think you need to give them
13 a specific charge. I think what the Court says is responsive
14 and I think it reflects this.
15 THE COURT: I'm going to add to this, "I refer you to
16 page 20," boom. We need to try to bring closure.
17 MR. FLOYD: We take no exception to that.
18 THE COURT: Okay, thank you.
19 (Recess, following proceedings at 4:40 p.m.)
20 THE COURT: I think counsel has seen the question.
21 Mr. Chartash, I think you and someone had predicted that this
22 lady, the foreperson of this jury, I'm beginning to think that
23 may be the problem.
24 MR. CHARTASH: I think you might be right, Your
25 Honor.
18
1 THE COURT: Patsy, I forgot to bring my glasses but
2 read that question into the record.
3 THE COURTROOM DEPUTY: It says: "Are the rules from
4 the State Board of Medical Examiners leading toward following
5 the law, if so, please state the law Dr. Andre Smith broke. If
6 he is indicted of a criminal act by prescribing controlled
7 substances over the Internet, then please state the law.
8 Lysaida Moore."
9 THE COURT: She doesn't know that the charge is the
10 law. I just think that -- I don't know what else to do and I'm
11 seeking guidance from counsel as to what we can do to get this
12 on track because it's so derailed that it appears based on the
13 questions we're now getting it's getting worse rather than
14 better. So let me just hear from both you guys.
15 MR. SOMMERFELD: Your Honor --
16 THE COURT: She's still making a request for the law.
17 MR. SOMMERFELD: Yes, and Your Honor, in light of the
18 questions, and knowing that it's your instruction which is the
19 law, what we would suggest is that they be reinstructed as to
20 solely the elements that the Government has to prove beyond a
21 reasonable doubt.
22 So there are elements on page 8 of your instruction,
23 there are three elements, there's elements on page 15 of your
24 instructions, three elements. And, frankly, I know you made
25 reference to it but they specifically asked for guidance as to

19
1 the usual course of professional practice and there's a
2 specific instruction about that, which is the last paragraph on
3 page 20. And because they're off track we think it's
4 appropriate to just list for them the elements or list for them
5 those pages and list for them that and actually read it to them
6 because --
7 THE COURT: Let me say, that didn't seem to help
8 because my last thing, I told them where the standard was, the
9 page, at your suggestion, we all agreed. She told the clerk
10 that she didn't understand that. Didn't she, said she did not
11 understand that? Can't figure that out.
12 MR. SOMMERFELD: Rather than just direct them to it,
13 frankly, we request that you bring them in here and just read
14 those two instructions and that last paragraph because that's
15 the law that they have to find.
16 THE COURT: If I bring them in here I'm going to read
17 the entire charge unless you all can agree on what you all want
18 to do. And at some point I'm going to have to give the
19 dynamite charge and that will be it because this is getting
20 worse.
21 When you indicate the page and line on which they ask
22 about the medical malpractice standard, then they say I don't
23 understand, I read it but I still don't understand it, then
24 we've got a problem here. We're moving in that direction. I'm
25 inclined now to tell them that the charge is the law.

20
1 MR. FLOYD: When it's my turn that's what I was going
2 to say.
3 THE COURT: The charge is the law.
4 MR. SOMMERFELD: Right.
5 THE COURT: I've said this repeatedly, apply that to
6 the facts.
7 MR. SOMMERFELD: That would be fine.
8 THE COURT: Then if they come back I'm going to have
9 to more than likely think seriously about giving them the
10 dynamite charge because they don't seem to get it and I think
11 probably we have someone whose background is such that she
12 really can't bring this all together.
13 Where is she from, anyway, Mr. Chartash? You were so
14 pleased -- I don't say you were pleased with your selection,
15 you all predicted --
16 MR. FLOYD: Puerto Rico, Judge.
17 MR. CHARTASH: From Puerto Rico, Your Honor, exactly.
18 THE COURT: And how long has she been in the country?
19 MR. SOMMERFELD: Of course, we don't know where this
20 is coming from, but if they would be instructed that the charge
21 is the law and they --
22 THE COURT: I'm going to do that.
23 MR. SOMMERFELD: That's great.
24 THE COURT: But I think I've done it.
25 MR. SOMMERFELD: I think so too but --

21
1 THE COURT: The charge itself is the law. Maybe they
2 think the charge is separate from the law. That's what I'm
3 going to put.
4 MR. SOMMERFELD: Okay. Thank you, Your Honor.
5 THE COURT: Thank you, and we'll wait word.
6 MR. FLOYD: That's what I was going to say, too,
7 Judge, the charge is the law, period.
8 THE COURT: But I think I've said that a thousand
9 times. But, thank you, and that's what I'm going to say. The
10 charge itself is the law.
11 (Recess, 4:45 p.m. to 5:03 p.m.)
12 THE COURT: Counsel, let me just explain something to
13 you. I've come to the conclusion that they are confusing my
14 charge on the law with probably charges in the indictment.
15 So I'm going to make it crystal clear that my charge
16 on the law is to be applied to the facts of the case and I am
17 going to indicate to them that the indictment just reflects the
18 crimes that the Defendant is accused of. Because I'm thinking
19 that the charge on the law, the charge in the indictment, which
20 is the law, and I'm going to let them go today and tomorrow
21 morning I'm going to put that before them and I think if they
22 don't grasp what's going on then I'm going to be forced to
23 consider giving a dynamite charge so we can move on with our
24 lives.
25 Okay, Mr. Floyd you want to be heard about something?

22
1 MR. FLOYD: Right. I don't want it on the record.
2 THE COURT: He doesn't it on the record, we're going
3 off the record, let the record so reflect. Court will be in
4 recess, thank you, Counsel.
5 (Proceedings adjourned at 5:05 p.m.)
6 * * * * *
7 (Wednesday, March 27, 2008, 11:02 a.m.; Genet
8 McIntosh Hopewell present representing Defendant; Mr. Floyd not
9 present.)
10 THE COURT: Thank you, good morning, please be
11 seated.
12 Young lady, so happy to see you. Have you heard any
13 good news yet?
14 MS. HOPEWELL: Not quite yet, Judge.
15 THE COURT: When was the operation, do you know what
16 time?
17 MS. HOPEWELL: He left, I think it was about 10:00.
18 THE COURT: Okay, he has our prayers.
19 MS. HOPEWELL: Thank you so much.
20 THE COURT: Thank you. Let the record reflect the
21 Court received a note from the foreperson of this jury and it
22 reads as follows: "We, the jurors, cannot make a final
23 decision. We cannot decide if he's guilty on all three counts
24 or not guilty."
25 And I think counsel has read the note, have you not?
23
1 MR. CHARTASH: We have not, Your Honor.
2 THE COURTROOM DEPUTY: We had the note. I told them
3 what it was in essence.
4 THE COURT: And based on the note it's now
5 appropriate for the Court to give an additional charge.
6 Bring the jury in.
7 (Jury returned to the courtroom at 11:05 a.m.)
8 THE COURT: Good morning, ladies and gentlemen of the
9 jury.
10 THE JURORS: Good morning.
11 THE COURT: Ladies and gentlemen, I'm going to ask
12 that you continue your deliberations in an effort to reach
13 agreement upon a verdict and dispose of this case. And I have
14 a few additional comments I would like for you to consider as
15 you do so.
16 This is an important case. If you should fail to
17 agree upon a verdict, the case will be left open and may have
18 to be tried again. There's no reason to believe that the case
19 can be tried again by either side any better or more
20 exhaustively than it has been tried before you.
21 Any future jury must be selected in the same manner
22 and from the same source as you were chosen and there is no
23 reason to believe that the case could ever be submitted to 12
24 men and women more conscientious, more impartial, and more
25 competent to decide it, or that more or clearer evidence could

24
1 be produced.
2 When you enter the jury room it is your duty to
3 consult with one another, to consider each other's views, and
4 to discuss the evidence with the objective of reaching a jury
5 verdict if you can do so without violence to your own
6 individual judgment. Each of you must decide the case for
7 yourself but only after a discussion and impartial
8 consideration of the case with your fellow jurors.
9 You are not advocates for one side or the other. Do
10 not hesitate to reexamine your own views and to change your
11 opinion if you are convinced you are wrong, but do not
12 surrender your honest beliefs as to the weight and effect of
13 the evidence solely because of the opinion of other jurors or
14 for the purpose of returning a verdict.
15 I know that all of you have worked hard to try to
16 find a verdict in this case. It apparently has been impossible
17 for you to do so so far. Sometimes an early vote before
18 discussion can make it hard to reach an agreement about the
19 case later. The vote, not the discussion, might make it hard
20 to see all sides of the case.
21 We are all aware that it is legally permissible for a
22 jury to disagree. There are two things a jury can lawfully do:
23 One, agree on a verdict; or, two, differ from what the facts of
24 the case may truly be.
25 There is nothing to disagree about on the law. The

25
1 law is as I told you. If you disagree over what you believe
2 the evidence showed, then only you can resolve that conflict if
3 it is to be resolved.
4 You must also remember that if the evidence in the
5 case fails to establish guilt beyond a reasonable doubt as to
6 any or all counts, the Defendant should have your unanimous
7 verdict of not guilty as to the count or counts. If the
8 evidence in the case establishes the guilt of the Defendant
9 beyond a reasonable doubt as to any or all counts, then you
10 should enter a unanimous verdict of guilty as to that count or
11 counts.
12 I have only one request of you. By law I cannot
13 demand this of you, but I want you to go back into the jury
14 room, then, taking turns, tell each of the other jurors about
15 the strength and weaknesses of your position. You should not
16 interrupt each other or comment on each other's views until
17 each of you has had a chance to talk about your position.
18 After you have done this, if you simply cannot reach a
19 unanimous verdict, then return to the courtroom and I will
20 declare this case a mistrial and will discharge you with my
21 sincere appreciation for your service in this case.
22 You may be as leisurely in your deliberations as the
23 occasion may require and you shall take all the time which you
24 feel is necessary, but I want you to make an attempt to resolve
25 this case by returning a verdict one way or the other.

26
1 So please return to the jury room. And Madam
2 Foreperson, I want you to allow each juror to evaluate the
3 strength and weaknesses of this case from his or her
4 perspective and after all of you have done that, if you can
5 overcome your differences, then we can bring this case to a
6 conclusion. But we owe it not only to the Defendant but also
7 to the State, because, as I've told you, this is an important
8 case and it couldn't be tried any better and that we know we
9 could not have a more competent jury to hear this case than
10 you. So I want you to make that final effort. Thank you and
11 at this time you may retire to the jury room.
12 (Jury retired from courtroom at 11:12 a.m.)
13 THE COURT: Patsy, make this a part of the record.
14 We will be in recess until we hear something, if we hear
15 something.
16 MR. CHARTASH: Thank you, Your Honor.
17 MS. HOPEWELL: Thank you.
18 (Recess, 11:13 a.m. to 2:10 p.m.)
19 THE COURT: Based on a note I received, not from the
20 foreperson of this jury but from one of the regular members of
21 the jury who is obviously displeased with the way in which this
22 case is being discussed and deliberated, this juror, who is
23 very disgruntled, stated in a note I'll read into the record
24 that he and many other jurors would like to pick a new
25 foreperson. So I had speculated early on I thought maybe the

27
1 problem was the foreperson and now I have this note and the
2 note reads as follows: "Many of the jurors and myself would
3 like to pick a new foreperson," although this person has "floor
4 person," "in order to get fair, organized, and equitable
5 deliberations accomplished."
6 That I think we need to do, and I want counsel's
7 input, maybe I should, on the record, interview each juror to
8 find out whether or not they think they will be able to reach a
9 verdict under the leadership of a new foreperson, without going
10 into discussions, and I'll have a record of it in chambers. If
11 the overwhelming majority say yes, then I'm just going to
12 authorize that they convene again and select a new foreperson.
13 This is the law, it's always evolving, it's our chance to -- so
14 my suggestion is just to find out whether or not what he says
15 is actually true because this person is of the opinion, this is
16 juror, is this Brenda Steward -- Bennie Steward.
17 THE COURTROOM DEPUTY: Bennie, it's the male.
18 THE COURT: Bennie Steward said that many of the
19 jurors, including himself, feel that they could reach a verdict
20 if they had a new foreperson. So should I inquire into that?
21 MR. CHARTASH: Give us a moment, Your Honor.
22 THE COURT: It's fraught. I'm going to give you all
23 15 minutes. There's no hurry.
24 (Recess, 2:12 p.m. to 2:25 p.m.)
25 THE COURT: Please be seated. Counsel, do you want

28
1 me to declare a mistrial or what have you all come up with?
2 MR. CHARTASH: That's a little different question.
3 THE COURT: Or do you all want to modify what I
4 proposed or do you all want me to proceed with what I proposed?
5 MR. CHARTASH: Your Honor, I'll --
6 MS. HOPEWELL: Your Honor, we would have some
7 concerns with --
8 THE COURT: I have some concerns, too. That's why I
9 say do you want me to declare a mistrial.
10 MS. HOPEWELL: We would have some concerns with
11 electing a new foreperson at this point because the process is
12 basically designed for everybody to express their individual
13 opinions regardless of who the foreperson is, and I think you
14 touched on that strongly with the last --
15 THE COURT: I've done everything possible, I agree
16 with you. I thought you all wanted to participate in making
17 law. I see you all are chicken. Well, I have no alternative,
18 then, but to declare a mistrial.
19 MR. CHARTASH: Your Honor, let's leave the first
20 question that you asked aside. I don't think there's any magic
21 to the foreperson position and Your Honor can certainly
22 instruct if they choose to elect, if they think it will be
23 productive to --
24 THE COURT: Let's assume I do as I proposed and I
25 report back to you with the record backing me up that the

29
1 overwhelming majority feel they could reach a verdict if they
2 had a new foreperson, and I know some of you are saying, well,
3 if that were to happen the foreperson may go the opposite way.
4 MR. CHARTASH: It's possible.
5 THE COURT: Be the lone holdout.
6 MR. CHARTASH: There's a lot of group dynamics.
7 There's nothing magical about the foreperson and getting
8 another foreperson.
9 THE COURT: I thought you all were crazy enough to
10 run that risk, just see what this experiment in justice will
11 lead us to. But, anyway, if I can't get you all on the same
12 page then I'm going to go ahead and declare a mistrial because
13 we've done all we can do.
14 MR. CHARTASH: Well, I don't think that defense
15 counsel is on the same page as us. We might be willing to go
16 forward but you're suggesting --
17 MS. HOPEWELL: No, we're not on that page.
18 THE COURT: I think she's saying, Judge, you've done
19 all you can do.
20 MR. CHARTASH: Right. Hold on one second.
21 THE COURT: Mr. Sommerfeld? I'm open-minded.
22 MR. SOMMERFELD: If the Defense is going to object to
23 it, yeah, I don't know that there's much that we can do to go
24 forward. If I were in Defense's shoes I may very well feel the
25 same way. So we've done a lot, we've done all we can do.
30
1 THE COURT: Let me think about this for 15 more
2 minutes and I'll let you know my final decision. Thank you.
3 (Recess, 2:37 p.m. to 2:45 p.m.)
4 THE COURT: Let the record reflect the Court, having
5 heard from counsel, the Court has decided to proceed with the
6 proposal but with a substantial modification.
7 Let the record reflect that the Court has decided to
8 send the following note to the jury from the Court and it reads
9 as follows: "If you, the jury, believe that continued
10 deliberations will be productive with the selection of a new
11 foreperson, you are authorized to select a new foreperson."
12 Let me hear from both, make your record.
13 MR. CHARTASH: The Government has no objection.
14 THE COURT: Ms. Hopewell, come to the podium. You
15 have a litany of concerns to enumerate, go ahead.
16 MS. HOPEWELL: Your Honor, our concern is that the
17 process, this is officially irregular, that it may distort the
18 process. The process itself is designed to allow each member
19 to express their views regardless of who the foreperson is. We
20 think that to change at this late date, essentially to dethrone
21 the person who is leading this jury, may create additional
22 other issues that may affect the deliberation on the issues in
23 this case. Therefore, for the record, we do object to
24 authorizing the jury to select a new foreperson at this point.
25 THE COURT: Let the record reflect your objection has

31
1 been noted and overruled. Thank you.
2 Ms. Springs, will you take this to the jury room?
3 Don't go anywhere, I think we'll hear something fairly soon.
4 Court will be in recess.
5 (Recessed at 2:46 p.m.; jury deliberations continued;
6 mistrial declared on Thursday, March 27, 2008.)
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1 C E R T I F I C A T E
3 UNITED STATES DISTRICT COURT:
4 NORTHERN DISTRICT OF GEORGIA:
6 I hereby certify that the foregoing pages, 1 through
7 31, are a true and correct copy of the proceedings in the case
8 aforesaid.
9 This the 18th day of August, 2008.
10
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14 Amanda Lohnaas, CCR-B-580, RMR, CRR

Official Court Reporter
15 United States District Court
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269: Transcript of Co-Defendnat, DR Smith's Jury Questions - 03-21-2008

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269: Transcript of Co-Defendnat, DR Smith's Jury Questions - 03-21-2008

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Case 1:06-cr-00337-CC-JFK Document 269 Filed 08/18/2008 Page 1 of 32

1 IN THE UNITED STATES DISTRICT COURT

10 Excerpt of the Jury Trial Proceedings

2 (Friday, March 21, 2008, 4:25 p.m.; jury not

4 THE COURT: Counsel, I received a very disturbing

6 MR. FLOYD: Yes.

7 MR. CHARTASH: Yes, Your Honor, we have.

8 THE COURT: Let me read it into the record. And I'm

9 assuming it's from the foreperson, it is signed by someone, I

11 we deciding based on Internet policies or general" -- what's

13 MR. FLOYD: Acceptable.

14 THE COURT: " -- acceptable or based on the law?"

15 So I am going to send out a copy of the charge. They

16 did make an oral request for the charge. But I think my

17 response is you have to take the law as reflected in the charge

18 and apply it to the facts of the case. And if they have

19 further questions then I might have to more focus on this. I'm

20 scared to get out here because the first question, Internet

21 policies and general procedures, and, of course, the medical

22 standard is embodied in the charge.

23 MR. SOMMERFELD: That's the --

24 THE COURT: That's why I don't want to -- we don't

25 have anything in my charge about Internet policies.

1 MR. CHARTASH: Can we disabuse them of that?

2 MR. SOMMERFELD: Right. Can we disabuse them of that

3 notion and say this is not to be decided on Internet policies?

4 THE COURT: If you all can agree.

5 MR. FLOYD: No, sir.

6 THE COURT: What do you want?

7 MR. FLOYD: I think you tell them you've given them

8 the law they have to apply to the case.

9 THE COURT: Right now I have to do that, we'll see

11 read the charge to answer the question, because your standard

12 is reflected, it doesn't say anything about Internet policies.

13 MR. SOMMERFELD: Right, can we tell the jury that?

14 MR. FLOYD: Judge, I think we have given them the

15 charge. Anything other than that would necessarily amplify

16 whatever else you put in the --

17 MR. SOMMERFELD: Your Honor, it's not unnecessarily

18 amplifying. They are asking for further instruction and they

19 said do we decide based on Internet policies, and I don't think

20 it's a matter of debate that that's not the case and so to

21 disabuse them from that is proper under the law.

22 THE COURT: Well, I had decided to do what I had

24 MR. SOMMERFELD: Okay, thank you.

25 THE COURT: Let's try that first. I know where you

2 one step at a time. Let me write out, I want to read to you

4 (Pause in the proceedings.)

5 THE COURT: Let me read these two. The first one I

6 have before me is just definition of conspiracy, they want to

7 define conspiracy. The charge will handle that.

8 The second one: "What year did the federal

9 government regulate the Internet pharmacies?" Didn't you all

10 get into that, when the government started regulating this

12 MR. CHARTASH: When?

13 MR. FLOYD: The C.F.R. reg was entered --

14 THE COURT: You know, I can't get into that. They've

15 got to rely on their own memory on that. As to the first one,

16 it addresses the charge. So I'm going to send out a note

17 telling them that -- I think we better recess because she's got

18 to put the charge together. Bring them in so I can just tell

19 them we're going to recess and on Monday morning we'll have a

22 The foreman of this jury is pretty prolific, Mr.