Académique Documents
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Culture Documents
v STOUFFLET
CASE 1:08‐CR‐0092
MISREPRESENTATIONS
“In 2001, Stoufflet sought to capitalize on the Internet boom by setting Stoufflet’s professional career of approximately 20 years is comprised
up an on‐line business to sell pharmaceutical products, including of managing and owning businesses that specialized in medical weight‐
controlled substances. Stoufflet's idea was to find a physician, or loss. Working with physicians that prescribed these very same
several physicians, who would issue prescriptions for customers who medications to customers for weight‐loss in a clinical setting, opposed
requested medication on‐line.” to the internet. The internet was an extension of his current business.
(Doc 217 02/28/2008)
“the United States wishes to clarify that the eScripts business Stoufflet’s business contracted within licensed U.S. PHARMACIES that
distributed phentermine, and other prescription drugs including “possessed,” “distributed” and “dispensed” the “controlled
controlled substances, to customers without any valid prescription.” substances” the government deemed illegal. At no time did Stoufflet or
[GOV’S OBJECTIONS STOUFFLET PSR 10‐20‐2008] the doctors “distributed” or “dispensed” the “controlled substances”
as the government has consistently has falsely asserted.
“Defendant instructed the design of a website where controlled Prior to hiring doctors, all doctors were pre‐screened by a 3rd party
substances and other prescription drugs could be ordered by members company that verified the credentials, etc.. and all doctors willingly
of the public, and which would provide legal cover for customers and entered into and agreed to terms set forth in the “Legal Contracts” aka
the physicians the Defendant paid to push the pills.” “Comprehensive Practice Management Agreement”
[Document 19 Filed 03/20/2009 Page 2] ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
The doctors were paid a flat fee that was based on the amount of time
“The Defendants want to recast their activities as practicing medicine they reviewed prescription requests. They were not paid on an
through pathbreaking new technologies. In reality, the conduct alleged approval basis.
in the Indictment amounts to little more than plain old pill pushing.” ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
[Document 149 03/14/2007] Stoufflet spent hundreds thousands of dollars in software and
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implemented policies to prevent diversion and abuse
“Defendant maintained the services of Garland and Samuel for eight 09/09/2008: Stoufflet notified the government of his intentions to
months following his guilty plea, until the eve of sentencing, when the terminate Garland and Samuel and to seek Judge Cooper if he cannot
Defendant requested appointed counsel.” resolve the problematic issues in the case with the government.
(Doc 19 03/20/2009 Page 7) (Stoufflet believed the government was misinformed about the facts
and believed upon being provided the facts, the government would
take corrective measures.)
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
AUSA Sommerfeld tried to discourage Stoufflet from terminating
Garland and Samuel as early as September.
“The DEA circular referenced in paragraph Stouffiet‐32, Andries‐31, DEA “circular” (aka “guidance” document) is not “law.”
Sobert‐Riggins‐Hollis‐Rashid‐ Smith made clear that Internet websites The record reflects the Government’s intentional misclassification of
that provided controlled substances on the basis of on‐line the “circular” as “Law” created many problems in this case, including
questionnaires were illegal.” during jury during deliberations in the trial of Dr. Smith.
[GOV’S OBJECTIONS STOUFFLET PSR 10‐20‐2008] [Document 269 Filed 08/18/2008 ] (Excerpt of the Jury Trial Proceedings
Before the Honorable Clarence Cooper March 21, 24, 25, and 26, 2008)
(NOTE: The date of the Gov. objections to Stoufflet PSR is after the Jury
Trial of Dr. Smith in which this very issue is directly linked and can be
considered one of the main reasons for the mistrial)
“Regarding paragraph Stoufflet‐29, Andries‐28, Sobert‐Riggins‐Hollis ‐ The government has concealed and failed to disclose the degree in
Rashi‐Smith‐27 the United States intends to submit a sentencing which the lawyers were involved in Stoufflet’s business.
memorandum in the matter of United States v. Stoufflet, 1:08‐CR‐082‐ Below are critical facts the government has concealed that refute the
01‐CC, which will address, among other things, the legal advice governments statements and position:
rendered to the eScripts principals. This advice included explicit ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
warnings that the business invite a criminal sanctions, and that the Stoufflet’s lawyers are on record stating the business was “not illegal.”
longer the business operated, the more likely a criminal action would a ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
result. “ Stoufflet’s lawyers consistently provided legal components that
[GOV’S OBJECTIONS STOUFFLET PSR 10‐20‐2008] facilitated business, reconfirming Stoufflet’s his belief his conduct was
legal.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Stoufflet’s lawyers involvement exceeded the rendering of “legal
advice;” as they structured the transactions the government has
deemed illegal.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
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A letter discussing possible “criminal sanctions” was sent and
discussed amongst Stoufflet’s lawyers, not Stoufflet. After such letter
was sent, the lawyers continued to supply Stoufflet with updated “key
legal contracts” used in the furtherance of the business.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
During the time the alleged criminal activity was occurring more the
lawyers became involved and the depths of their involvement
increased.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
At no time did any lawyers “withdraw” from providing legal services.
(Lawyers are required to withdraw from activity they deem illegal.)
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10/26/2009: ATTORNEY DON SAMUEL STATED:
“ I agree with you that the "dangerou" or "red flags" letter may have
"been insufficient, as a matter of legal advice. But it does show,
unequivocally, I think, that they knew exactly what your company did
and continued to bill you every hour, knowing what you were doing. I
have always thought this was a very strong point on your side. After
all, if they thought what you were doing was flat‐out illegal, they would
not be allowed to continue to bill you on an hourly basis, in the same
way that a lawyer cannot provide legal services to a heroin or cocaine
distribution business on an ongoing basis. The fact that they continued
to bill you shows that, at least to some extent, they viewed you as
being involved in a legitimate business, even if it was somewhat
"dangerous" (or whatever you want to call it)”.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10/27/2009: SAMUEL STATED:
“I understand your point yesterday that the lawyers were, for all
practical purposes “in on it” in the sense that they profited from your
business, knowing exactly what you were doing.”
“The United States’s Response to Defendant’s Motion to Withdraw Again, the government’s concealment of above facts and failure to
Guilty Plea explained that, “Defendant seeks to withdraw his plea . . . disclose the depths of the lawyer’s participation allows the
to air his lament that he spent a fortune on advice from numerous government to assert such false allegations.
attorneys, and that he therefore should be absolved from criminal
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liability.””
(Doc 25 05/19/2009 Page 11)
“Unsurprisingly, given the design of his website, Defendant’s The online medical questionnaire was formulated by medical doctors
customers received well over 95% of the drugs they ordered.” and approved by the lawyers.
(Doc 19 03/20/2009 Page 2) ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
The 95% the government alleges is incorrect and taken out of context;
all factors are not being considered.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Stoufflet spent hundreds of thousands of dollars in implementing new
technology that highly scrutinized potential abuses. Thousands of
Orders were flagged and placed “on‐hold” until further review and
verification could be performed.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
The government should be required to disclose all of the “Orders” the
government placed with Stoufflet business that were declined, or
placed “On‐Hold” for further analysis and verification.
“Because the government need not establish whether the Defendant The government’s concealment and failure to disclose the depths of
intended to violate the law, whatever advice of counsel he may have the lawyer’s participation allows the government to assert such false
received is simply irrelevant to the Defendant’s culpability.” allegations.
(Doc. 19 03/20/2009 Page 26) ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ The critical fact that Stoufflet met the following criteria which was
“Second, Defendant should not be permitted to withdraw his plea to necessary to assert “advice‐of‐counsel” defense:
present evidence regarding his attorney advice because advice of (A) he consulted in good faith an attorney
counsel is legally irrelevant to the crimes charged.” (B) whom he considered competent,
(Doc 19 03/20/2009 Page 24) (C) made a full and accurate report to his attorney of all material facts
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ of which he had the means of knowledge,
“Defendant’s strategic decision was understandable considering that (D) and then acted strictly in accordance with the advice given to him
an advice of counsel defense is legally irrelevant to the charges against by his attorney.
him, and could not be established under the facts of this case.”
(Doc 19 03/20/2009 Page 26) (the government knew Stoufflet met the prerequisites to legally assert
this defense at trial but entered Motion to Exclude “Advice of
Counsel” Doc 217)
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
The Court ruled the crimes Specific Intent which “advice of counsel”
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defense was allowed. [Doc .225]
“In turn, Defendant’s website gave physicians cover by having the Stoufflet paid doctors to formulate the medical questionnaire for the
customers complete a bare‐bones “medical questionnaire”, and by website
having customers agree that they had read forms which purported to ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
remove liability from Defendant’s business and the physicians. (Id.) FDA Special Agent Paul Southern told Stoufflet his business was
Particularly illustrative of the sham, Defendant’s “medical complaint.
questionnaire” not only suggested the answers customers should “The Affiant told Stoufflet that based upon the information he
provide to receive their diet drugs, but even went so far as to permit provided the Affiant, his operation appeared to be in compliance with
customers to change their information, such as their height and FDA laws and regulations in that a physician was personally reviewing
weight, until they met the qualifications disclosed on the the questionnaires (sic) and personally signing the prescriptions.”
questionnaire.” (See Application and Affidavit for Search Warrant)
(Doc 19 03/20/2009 Page 2)
“Plainly, the Defendant was not rushed or pressured into pleading [02/12/2008] [SAMUEL] “As I told you last time you were at the office,
guilty. That the Defendant chose to wait until days prior to his I don't want to spend any more time trying to convince you that you
imminent trial before accepting the plea shows, if anything, that any should plead guilty.”
supposed time pressure was the result of the Defendant’s ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
procrastination rather than any external influence. “ [01/20/2009]: [Samuel]
(Doc 19 03/20/2009 Page 9) “YOU CERTAINLY WERE PRESSURED.”
“BOTH ED AND I DEFINITELY TOLD YOU THAT WE THOUGHT THAT YOU
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ SHOULD ENTER THE PLEA; THAT YOU HAD RELATIVELY LITTLE TIME TO
“That the Defendant chose to wait until days prior to his imminent trial MAKE THE FINAL DECISOIN; THAT THE JUDGE MIGHT RULE THAT YOU
before accepting the plea shows, if anything, that any supposed time COULD NOT RELY ON THE ADVICE OF COUNSEL DEFENSE FOR EACH OF
pressure was the result of the Defendant’s procrastination rather than THE CRIMES; THAT THE RISK OF GOING TO TRIAL AND LOSING WAS
any external influence.” ENORMOUS (I.E., MUCH LONGER SENTENCE). I CAN ALSO SAY FOR
( Footnote 2 Doc 19 03/20/2009 Page 9) SURE THAT YOU WERE UNDER A GREAT DEAL OF PRESSURE AND THAT
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ YOU WERE INITIALLY RELUCTANT TO PLEAD GUILTY (AND HAD SAID
“Particularly in this case, involving eight charged defendants, well over THAT YOU WANTED A TRIAL FOR MOST OF THE PAST TWO YEARS ‐‐
a hundred boxes of documents, and extensive and complex criminal THOUGH THE TOPIC OF SETTLING WAS OFTEN DISCUSSED).”
activity, the United States was more than generous in allowing the lead ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Defendant until days before trial to consider whether to accept a The facts prove Stoufflet repeatedly refused to enter the plea for 19
favorable plea agreement including potentially full credit for months.
acceptance of responsibility.” ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
( Footnote 2 Doc 19 03/20/2009 Page 9) He elected to proceed to trial, sacrificing 292‐365 months of
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ incarceration rather than plead guilty.
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“As a threshold matter, the Defendant made a strategic decision while ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
the motion was pending to accept the favorable plea agreement rather It was Governments Motion in Limine to Exclude “Advice of Counsel,”
than press his advice of counsel defense.” (exclusion of his “case‐in‐chief” defense) thrust upon him 10 days prior
(Doc 25 05/19/2009 Page 5) to trial and subsequent short deadline in which the guilty plea was
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ obtained.
“Essentially, his ineffective assistance claim is merely another attempt
to present an advice of counsel defense that Defendant strategically
chose to abandon in favor of a negotiated plea.”
(Doc 25 05/19/2009 Page 4)
“Despite Defendant’s assumption that the Court ruled in his favor, the The Order of the Court declared the crimes Specific Intent.
Court’s Order does not support Defendant’s claim. The Court’s ruling,
which was solely with regard to a doctor‐defendant’s “good faith” “In light of the foregoing authorities, the Court rejects the
defense, affirms that the Controlled Substance Act violations require Government’s position that the crimes with which Defendant Smith is
an “intent to distribute”. charged are general intent crimes. Good faith evidence is relevant, and
(Doc 25 05/19/2009 Page 7) the Court DENIES the Motion in Limine to Exclude Good Faith
Defenses, Including Advice of Counsel, Mistake of Law, and Erroneous
Belief the Conduct was Legal [Doc. No. 217]”
[Court Order Doc 225]
“Instead, Defendant manipulated the system further, lying in wait Stoufflet inquires to Samuel on March 28, 2008 about the ruling on the
while two separate juries were selected and one case was tried, and governments motion to “exclude advice‐of‐counsel” defense
reviewing the terms of his PSR, before moving the Court to withdraw
his guilty plea almost a year after entry of the Court's order on which Stoufflet was told by his highly esteemed defense counsel that the
he supposedly bases his request.” Court would not rule on the Motion and therefore had no reason to
(Doc 25 05/19/2009 Page 5) believe he was entitled to participate in any trial.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
“Instead, Defendant secured the benefits of a plea, and strategically It was not until May 2008 that Stoufflet first learned about the
waited for the completion of trial against others before filing his possibility to “Withdraw a Guilty Plea” (while doing research on his
present motion to withdraw his plea.” own)
(Footnote 3 Doc 19 Filed 03/20/2009 Page 17) [see 05/03/2008 email]
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
“Moreover, as discussed in the United States's original response, The facts demonstrate a massive, consistent effort on Stoufflet’s
Defendant had ample opportunity after the Court's ruling to move to behalf to resolve matters with the government and defense counsel.
withdraw his plea in time for trial with co‐defendants.” Not knowing a provision existed to seek withdrawal and being told by
(Doc 25 05/19/2009 Page 5) both Samuel and Zimmerman time was not a factor when seeking
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‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ withdrawal Stoufflet proceeded efforts to correct the problematic
“If Defendant had a bona fide concern regarding his plea, he should issues regarding the entering of the guilty plea. The facts reveal a vast
have promptly sought withdrawal and faced trial in March 2008 or effort from the time the plea was enter to the time the Motion to
with the jury empaneled in August 2008.” Withdraw Guilty Plea was filed.
((Footnote 3 Doc 19 03/20/2009 Page 17)
Stoufflet specifically told both defense counsel Samuel and
“Defendant offers no explanation for why he failed to raise this claim Zimmerman that he did not want to do anything to jeopardize
soon after his allocution, or for why he waited close to twelve months withdrawing the guilty plea. Both attorneys assured him time was not
to first assert this claim in his withdrawal motion.” a factor.
(Doc 19 03/20/2009 Page 23)
[08‐21‐2008 TO SAMUEL 08‐21‐2008]
[09/21/2008 COPY FORWARDED TO GOVERNMENT]
[STOUFFLET] “I am not sure how this works, I do not want my
opportunity to withdraw my plea to be effected in anyway.”
[02/28/2009 TO ZIMMERMAN]
[STOUFFLET] “I do not want Judge Cooper to deny considering
me the ability to withdraw the plea because it was too close to
sentencing.”
09/23/2009: SA Bob Kuykendall admitted during the Court
proceedings:
“Well, the truth, the focus of the truth was that, if I may
paraphrase and I'll go back if you would like me to be more
specific, but because he showed us copies of documents related
to the lawyers' involvement, specifically primarily it was the
contracts, the fact that the lawyers helped write and rewrite
and draft the contracts, his point was the lawyers were
therefore very intimately involved in the process, they had
knowledge, he hired the lawyers to help him do the right thing,
et cetera”.
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Stoufflet informed the government his intentions to seek withdrawal
as early as September if he wasn’t able to resolve things with them.
The government is well‐aware of Stoufflet consistent efforts to correct
the injustices and do not constitute “waiting” by any means.
STATE LAWS The government intentionally misconstrues medical board policies in
16. An example of some state laws which imposed requirements upon the indictment as “State Law.”
doctors and healthcare professionals to take certain steps before they
could prescribe, distribute, or dispense controlled substances included: “They do not, however, constitute “Georgia Law” as the
(See Indictment at ¶¶ 16‐17.) Indictment erroneously alleges.”
(Doc 76 01/19/2007)
“Further, a Georgia amendment effective February 14, 2002, made
clear that prescribing over the Internet without a face‐to‐face
examination, outside of certain exceptions which do not apply here, is
unprofessional conduct, and therefore illegal.”
(Doc 274 08/19/2008 Page 3)
“In 2001, Stoufflet sought to capitalize on the Internet boom by setting Stoufflet’s professional career of approximately 20 years is comprised
up an on‐line business to sell pharmaceutical products, including of managing and owning businesses that specialized in medical weight‐
controlled substances. Stoufflet's idea was to find a physician, or loss. Working with physicians that prescribed these very same
several physicians, who would issue prescriptions for customers who medications to customers for weight‐loss in a clinical setting, opposed
requested medication on‐line.” to the internet. The internet was an extension of his current business.
(Doc 217 02/28/2008)
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