Académique Documents
Professionnel Documents
Culture Documents
ATLANTA DIVISION
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
I. Background
Over a year ago, on or about March 4, 2008, the Defendant pled guilty to
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.)
owner and operator of an illegal business which distributed vast amounts of controlled
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information [Doc 1], Guilty Plea and Plea Agreement [Doc 5] at 1-2 ¶ 1, Tr. 25-30;
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
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
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
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
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
a valid prescription.
Because of the pending trial against the remaining doctor defendants, sentencing was
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
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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
guilty plea, particularly at this late date. As discussed below, each of the four factors
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
his plea, the Defendant’s Motion to Withdraw Guilty Plea should be denied without
II. Discussion
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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
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
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
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THE COURT: Okay. Mr. Stoufflet, are you satisfied with the
representation of your lawyer in this case?
(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
(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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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.)
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
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
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
(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
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:
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
[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
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 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?
(Tr. 10-11.) In sum, the record reflects the Defendant understood the nature of the
Protection Act of 2008, 21 U.S.C. 831 (2008), magically renders his guilty plea
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
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.
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
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
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
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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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
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).
Brehm and Mugan. The defense provides not a single case where a guilty plea has
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,
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
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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prejudiced by the Defendant achieving a de facto severance where none was legally
warranted.
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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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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
After seeing the PSR and with sentencing imminent, the Defendant now regrets
to permit withdrawal of a plea. Nevertheless, the Defendant now claims that his guilty
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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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
his clear statements on the record. See United States v. Sweeney, 878 F.2d at 70.
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,
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
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
816.
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Likewise, in United States v. DeCarty, 2008 WL 4997100 (11th Cir. Nov. 25,
United States v. DeCarty, 2008 WL 4997100 (11th Cir. Nov. 25, 2008)(quoting United
Binding Eleventh Circuit precedent sets forth the elements of the crimes
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
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
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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
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
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.
defendant has the intent to distribute. This Court’s ruling did not establish whether the
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
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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
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.)
this late date, to permit him to withdraw his plea. Defendant’s strategic decision was
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.
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
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Case 1:08-cr-00082-CC Document 19 Filed 03/20/2009 Page 29 of 29
The foregoing document was formatted in accordance with Local Rule 5.1B
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
/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
BY FACSIMILE
Edward T.M. Garland, Esq.
Garland, Samuel & Loeb, P.C.
3151 Maple Drive, N.E.
Atlanta, GA 30305
Facsimile 404/365 5041
Dear Ed:
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.
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
Ed and Don:
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
Ed and Don,
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