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3
UNITED STATES OF AMERICA, )
4 )
)
5 -vs- ) Indictment No. 1:08-CR-82-CC
)
6 CHRISTOPHER STOUFFLET, )
Defendant. )
7
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: Lawrence J. Zimmerman, Esq.
21
22
1 INDEX
3 Christopher Stoufflet
Cross-Examination, Continued 4
4 Redirect Examination 13
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24
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3
3 ready to resume.
6 cross-examination.
9 one minute.
14 long that will be. We then, and if that's the only witness,
1 CROSS-EXAMINATION (Continued)
2 BY MR. CHARTASH:
6 A. Yes, sir.
8 longed for the day that you could meet with Mr. Sommerfeld and
9 myself, correct?
10 A. Yes, sir.
13 A. Yes, sir.
17 A. Yes, sir.
7 A. I'm not sure you sought his approval. I did meet with you
14 A. That's correct.
16 A. Yes, sir.
18 A. Yes, sir.
24 MR. SOMMERFELD: 8.
2 recognize it?
22 me.
24 Stoufflet, did --
12 you have?
16 a possibility.
24 A. Yes, sir.
1 right?
2 A. Yes, sir.
4 A. Yes.
6 can't advise you, but told you our opinion was that it was
3 A. Good.
8 A. Uh-huh.
10 you refer to it as --
12 justice?
19 just read it, you told prosecutors and Mr. Nahmias that I
20 should remain with said counsel, meaning Mr. Samuel, and they,
23 A. Yes, sir.
3 I disclosed that and then you guys allowed me to meet with you.
4 And then after the fact you said that you shouldn't have done
7 those lines.
8 Q. After the fact? No, we told you that up front, didn't we?
12 you in writing?
15 ought not, it's not prudent, in our opinion, for you to meet
17 beginning, correct?
23 Q. That's fine.
25 fair.
11
2 9.
5 of all this.
7 have a jury, let me find out what he's doing. I don't know.
10 find out.
17 A. Correct.
20 Q. Take a look.
3 recall and --
12 evidence?
16 objection.
17 Q. (By Mr. Chartash) And the page that I was referring to,
21 A. Uh-huh.
24 is there?
6 Q. (By Mr. Chartash) I'm just asking you about the letter;
11 Mr. Zimmerman?
13 REDIRECT EXAMINATION
14 BY MR. ZIMMERMAN:
18 withdraw your guilty plea just because you want to air your
19 grievances and tell the Court how much money you spent. Why do
23 guilty plea?
25 would have a fair trial. And, once again, that didn't happen.
14
2 it and at the last minute when they filed those motions and,
7 very explicit about how much effort, belief, and if you want to
16 you're saying is you want a trial because you believe you have
17 a viable defense?
21 referenced and the all the advice that was given that's
1 Q. And are you of the opinion that Mr. Samuel gave you the
12 Q. I'm not really sure what that means, but so you're of the
13 opinion that when Mr. Samuel and Mr. Garland told you that you
16 A. To me, but I'm not the lawyer here. But, I mean, I was
17 never told --
19 Court wants you to elaborate, Judge Cooper will ask you to.
20 A. Okay.
4 Q. (By Mr. Zimmerman) You testified that you had all this
5 advice, right?
6 A. Yes.
22 point?
24 Q. Yes.
5 down.
8 witnesses.
18 forward. Please step up, face me, and raise your right hand.
21 as follows:
3 DIRECT EXAMINATION
4 BY MR. SOMMERFELD:
6 A. Good afternoon.
9 office.
16 A. Extensively.
19 to Mr Garland's reputation.
4 well, right?
6 began practicing.
11 A. Yes, I have.
14 A. That's correct.
15 Q. And that was before even the indictment came out; is that
16 correct?
17 A. That's correct.
2 take, but we always want to know what the option is and have
4 the charge would be, what the recommendation would be, things
8 Q. Well, let me show you this just to put some sort of bound
9 on it.
15 A. Yes.
17 A. Yes.
19 consideration?
20 A. Yes.
23 is that fair?
4 are.
8 A. Yes.
10 A. Yes.
15 Q. Other than that, was every other material term of the plea
8 Q. And --
18 2007?
23 Q. And once that was agreed upon, the only thing left was the
1 Q. And did you discuss the plea agreement with your client
5 Q. Thorough discussions?
6 A. What?
7 Q. Thorough discussions?
11 A. Yes.
13 A. Yes.
15 A. Yes.
3 plead and had told him I believed it was in his best interest.
9 Q. And did --
12 your office and finally told you he was going to plead guilty,
13 roughly?
18 issues. The great portion of the issue we dealt with was our
5 Q. (By Mr. Sommerfeld) And more than two weeks, that's the
11 entered, before I leave that, in March 2008, was the same plea
14 A. That's correct.
19 that?
20 A. Yes.
22 by the judge?
23 A. No.
25 opinion on a motion?
26
1 A. No.
4 defense?
5 A. No.
8 A. No.
11 A. I think so.
16 time because Chris was really reflecting over his struggle with
25 that the Government would not give any more concession or delay
27
13 well, let's get to the bottom of it, we have a trial upon us,
16 deadline?
17 A. That is correct.
2 decision. For a long time I did not give him advice on that
7 not.
10 A. That's correct.
13 will.
18 A. That is correct.
21 A. Yes.
25 had thoroughly analyzed the case, there was always more that
29
2 could get the evidence in of all the legal advice that he was
4 could do that was weighed and thought about and worried about.
5 And we ultimately advised him that the risk in this case was
6 higher than he should take and we didn't know what the judge
7 would rule and that was our advice. Right or wrong, it was my
8 heartfelt advice.
10 A. Yes.
12 him into pleading guilty and that you told him what to say
13 during the plea hearing and how to say it. Did you advise him
18 told him that the plea would not be accepted if he did not
4 A. Correct.
6 right?
7 A. Yes.
10 A. Yes.
12 A. Yes.
13 Q. Thoroughly?
14 A. Yes.
17 A. No.
18 Q. Did you advise him to sign and give answers that were
20 A. I did not.
21 Q. You were under oath at the plea hearing -- well, not under
22 oath, but you're an officer of the Court and you gave answers
24 A. Yes.
25 Q. And you told the judge that you believed it was a plea
31
2 A. Yes.
4 mentioned during his testimony that it was your plan with him
7 innocence at sentencing?
18 the way the law kept changing, the fact that he paid millions
5 under the facts that the Government can prove and that he knew
10 risk the Court might rule it all out in our trial and then we
12 Q. And I'm not going to get into the facts of the advice of
13 counsel defense, that's not why we're here, but you understood
25 We turned them over and the good and the bad were in there. We
33
1 just felt like for mitigation the good way outweighed the bad.
5 misunderstood that.
12 CROSS-EXAMINATION
13 BY MR. ZIMMERMAN:
16 Q. I'm just going to cover real brief areas with you. You
18 guilty, right?
19 A. Very conflicted.
21 period of time?
22 A. That is true.
24 November 2007, there were some plea negotiations that had begun
3 Q. As we all do.
8 know, you've got to get the Government to say what they will
9 do, while at the same time you're talking to your client about
10 what he will do, and it's a process that takes a period of time
11 before that moment may gel. It may never gel. And so that's
16 A. I felt so.
24 enter his plea in March 2008, because the Government was moving
8 that was a factor that played into his decision. And we told
9 him, you know, we didn't -- well, we told him about what could
19 brief, which we gave to Chris and went over. We had our side
20 of that argument. But the tea leaves hadn't looked that good
6 A. Yes.
10 David Levitt.
12 This goes to the advice Mr. Garland, Mr. Samuel may have given
13 and --
15 question.
17 case, right?
18 A. Yes.
20 negotiations?
6 with Chris and would have intersected the process and it wasn't
15 REDIRECT EXAMINATION
16 BY MR. SOMMERFELD:
19 the motion in limine the first time you discussed with the
21 applicable at all?
22 A. No.
1 information before the jury and get the judge to admit it.
7 Mr. Chartash and yourself asserted that it was not relevant and
9 forth about it. We, of course, felt our side was correct --
10 Q. Of course.
14 you?
16 Q. You mentioned --
17 A. I would hope -- I was hoping that you all would lay back
19 the jury before you kept it out, or that the judge might agree
20 with me.
24 there in the defense strategy, was there any doubt that the
2 conceded that he was in the business. This was not about Chris
5 felt were false and that the Government was being told things
6 that were not true. And part of our strategy was that we would
8 witnesses.
13 intent.
19 crime.
21 Honor.
3 THE COURT: Thank you, you may step down. Thank you,
4 Mr. Garland.
7 Kuykendall.
9 ROBERT KUYKENDALL,
11 as follows:
16 Your witness.
18 DIRECT EXAMINATION
19 BY MR. SOMMERFELD:
20 Q. Good afternoon.
21 A. Good afternoon.
1 A. Well, I've been with the FDA since May of 2002, but I've
5 interviews?
6 A. Yes.
12 A. Yes, I am.
14 Defendant after the guilty plea was entered. Were you involved
15 in any meetings with the Defendant after the guilty plea was
16 entered?
24 Q. Let's talk about the first meeting. Just who was present
5 A. Correct.
11 Office cc'ing Don on the fact that the meeting would take
12 place, as if --
19 had been copied on this message and Mr. Chartash said that, you
3 wanted to talk about, you know, what was really going on in the
6 A. Well, the truth, the focus of the truth was that, if I may
10 contracts, the fact that the lawyers helped write and rewrite
11 and draft the contracts, his point was the lawyers were
14 et cetera.
23 A. He was.
2 A. He did.
9 Q. 37 drivers' licenses?
10 A. Right.
11 Q. 37 customers?
14 his statement was that this was, you know, evidence that he was
19 to 2002.
21 2002?
24 the lawyers.
2 information?
14 asked him?
15 A. 13.
16 Q. 13, okay. But other than those and other than the
18 licenses?
19 A. No.
22 A. Right, 37 of them.
6 37?
7 A. Right.
8 Q. Could you tell us, did the Defendant explain why these
11 basically telling Mr. Stoufflet that not only did I not think
12 it helped his position but I think it looked bad for him that,
21 would kick in. So that's not a process that took place on all
22 300,000-plus orders.
16 accepted.
21 A. Correct.
23 automatically accepted?
24 A. Right.
1 A. Yes.
3 still send out the drugs even if the computer had rejected
4 them?
13 A. No. His specific was that this started early on, that it
15 that this was generally done as -- that this wasn't done 100
16 percent of the time; this was done as a -- once that order had
17 been flagged.
19 more?
20 A. No.
21 Q. You were sitting here. You heard during the direct he,
6 the one doing the interviews out in the field by myself, it was
9 we're not sure why you're meeting, you know, this is risky for
10 you, et cetera.
15 all, does the Government have Jencks they want to turn over at
16 this point?
1 CROSS-EXAMINATION
2 BY MR. ZIMMERMAN:
7 identifications, right?
8 A. Yes.
10 done, right?
11 A. Yes.
13 A. No.
16 show what they were doing. And then I said, dude, there's only
23 A. I would have an idea that there are not based on the fact
25 us.
51
1 Q. But you don't know the reason why he never came back to
3 A. That's right.
5 A. Oh, yes.
7 A. Exactly.
9 A. Yes, sir.
11 I'm sorry.
15 lawyers', right?
19 counsel.
22 A. Usually.
25 A. Right.
52
2 would turn over documents to his lawyers and they in turn would
4 A. Yes.
8 A. Yes.
11 A. Right.
13 A. Right.
2 A. I have no idea.
5 Mr. Sommerfeld?
7 Your Honor.
20 make sure it's part of the record and I read the complete
23 since it's my burden I get to open and close. Would the Court
6 It's the Defendant's burden here and I feel like the United
12 close and walk out and Your Honor can make a ruling.
15 last, you want to go first, I'll hear from both sides, closing
21 case?
5 you want --
9 Your Honor, and we rely upon, although there are many others
13 is 442 F.3d --
2 don't know what's coming and one of the reasons I don't know
4 this --
8 read four briefs about this, this is our third hearing about
20 during his plea colloquy. And that's what he's saying: I lied
14 the Defendant didn't file for withdrawal of his guilty plea for
17 really all he's relying upon, he's saying: I lied to you under
21 truth.
23 those things was true at the time he made his plea. Where was
24 he for 50 weeks? And the case law is very clear, and we cite a
25 ton of it, that weeks can be too much, five months is certainly
58
1 too much, three months is too much, eight months is too much
3 Government.
9 does, he's much more animated and entertaining than I will ever
10 be but I trust you recall during our last hearing he said, ah,
11 when did you see the Court's decision? The Defendant said he
24 could.
4 about meeting with the United States but I'll urge you to look
19 through two trials. He waits six months after the second trial
23 and the defense has not cited a single case, where the
25 months following the guilty plea, much less one where there
60
3 Don Samuel's e-mail where Don advises him, you know, he asks is
5 And Don tells him a bit about the law. And you know there's no
6 black letter law that says you can file it before your
14 Defendant waited six months even after that e-mail to file his
15 motion to withdraw.
17 those four factors. I'm not going to walk through them. I'll
21 withdraw and he cited the four factors and he cited the Buckles
25 first hearing and Defendant says, you know what, we don't have
61
5 nineties, in the 2000s, cites the four factors, uses the four
9 where the Court says we're not using the four factors because
10 it says "may."
24 necessary.
25 Brown is a case far, far from the idea that the Court
62
2 the four factors are against the Defendant, you know, you can
3 just rule and give him another trial anyway. The defense has
8 years that I have seen has considered, even the case cited by
9 the Defendant, the Brown case, sets forth those four factors
16 just reason for allowing him to withdraw his plea, just want to
17 state that.
21 But regardless, the fair and just reason, the only reasons that
4 counsel. We've talked about that and I trust you remember when
8 of counsel, that's not the law. It's very clear that if it's
10 clairvoyant.
13 gave his best opinion as to it. And you know what, Your Honor,
16 against him. What they seemed to have said, if you look at the
18 have put in our best arguments against it but you run the risk
22 ago from Mr. Garland, even before the Government's motion, one,
5 matters, says you do this, you risk going to jail, and the
6 longer you do it, the more likely it is. And, oh, by the way,
7 here's some other things you could do, we don't know they will
8 help but they can mitigate the risk. And the Defendant doesn't
9 do them at all.
11 counsel here. You heard it from Mr. Garland and Mr. Samuel,
14 we're not sure what the Court is going to do but you run a
17 counsel.
21 assistance.
24 defense comes back here at the second hearing and says, you
1 of counsel.
4 the first hearing walks away from the four factors. Then the
10 the acts that the Government alleges he did and accepts full
13 hearing and says I didn't do it, all that was a lie, I lied
15 Court, and that was the whole point of calling Mr. Kuykendall.
18 That proves that the ones that were rejected by the computer,
19 they were still trying to get them the drugs. And it's 37 out
20 of hundreds of thousands.
23 But when you get back down to it, the factors talked about by
6 manipulating the truth. And I think that's seen here with the
7 72 hours.
10 plea agreement with him and says 72 hours, you know, that's it.
13 a week before trial isn't too bad. But, Your Honor, he wasn't
15 Samuel and Mr. Garland this was talked about for months. We
22 risk. I'll take that as a given. But the fact is this was no
8 Don Samuel comes to the first one, and then consents to him
11 we're meeting with you, you sent your father to try to arrange
12 this meeting, fine, we'll meet with you, you want the meeting,
1 limine.
8 plea. The jury was in the next room. He tried to withdraw his
10 appeal, 35 minutes.
22 come back 11 months later and say you know what, Your Honor, I
1 and you base your motion to withdraw your guilty plea on lying
5 motion, you face a higher burden. You can't just come back and
6 say you know what I said before, I lied, under oath there, I
12 this Court any time during those 11 months when he could have.
13 He did not even look for new counsel until after he saw the PSR
21 Mr. Zimmerman?
23 difficult case for my client, also for his counsel, who was
4 not to take that into account in your decision that you make.
11 four factors. We need to show a fair and just reason, that the
20 Circuit law and clearly all those cases do say here's the
24 those, and I will, I came in last time and said but we don't
12 liberally construed.
15 argument.
19 pharmacies, and I'm not going to bore the court with the
23 Samuel testified under oath had the doctors in this case met
1 legal. This isn't the typical 841 case that the Government
5 testified to it.
18 v. Jackson, 526 F.2d 1236, it's a 1976 Fifth Circuit case, and,
21 consciously agree with somebody else and have the same intent.
2 missed.
14 779 F.2d 606, it's an Eleventh Circuit case. In that case the
4 Court, but I gave the case cite, very similar case where the
17 Samuel and Mr. Garland said: You're out, you have no defense,
19 correct, let's not wait till the judge rules. That's what
23 Mr. Samuel read e-mails and testified that Mr. Stoufflet never
10 question in the case. And you know what, Your Honor? The
15 for Dr. Smith, that had nothing to do with Mr. Stoufflet. It's
17 the ruling says. I think the Court can read its own ruling and
18 know why you ruled a certain way and who it applied to. But it
19 talked about 841 being a specific intent crime. That's why the
25 factor is more important than the other, the Court can just
76
9 places that, you know, he paid lots of money to who said, look,
10 here's how you do these things, it's not illegal, it's a gray
11 area.
15 that's what his thinking at the time was, was that it wasn't
19 that Mr. Stoufflet and I may diverge at this point, but what he
20 told the Court at the plea colloquy wasn't a lie, other than, I
1 that everything that was stated was the truth but Mr. Stoufflet
5 stood up and told the Court during that plea that this was a
6 complex case, that Mr. Stoufflet had to have aided and abetted
8 this crime.
13 into pleading guilty. And I know Mr. Samuel and Mr. Garland
1 let's do this.
3 out there because his plea agreement has a certain cap in it.
5 for the next 25 to 30 years and that's what he's risking. The
4 who have left law firms and have gone on to other places to
12 idea what I was getting myself into. And so I needed some time
17 up here before the Court to plead guilty, the Court told him he
19 right to an appeal.
1 alongside him. Neither one of them ever said, Chris, you can
4 but it's not necessarily the way it should be looked at, that
19 it's not the actual months that the Court needs to look at, if
23 stopped investigating the case early on. And then when the
3 not just because there's a delay, it's not the months that
12 case has been tried, the Court heard it. No one -- there's no
15 on?
17 just reason. I think we've shown that, that Mr. Stoufflet was
18 given the wrong advice at the critical moment and he made the
20 trial.
2 jury trial. What's more fair and just than that? He felt that
10 real bad, this whole case, all around for everybody, especially
14 he's the one who's being prosecuted and he's the one who's
20 can be raised.
4 have an ethical duty to tell him what's right and what's wrong.
7 where he would go for the top advice. Mr. Samuel made it clear
11 building this company, the laws were not clear. The laws
13 that it wasn't until 2008 till the Ryan Haight law was passed
17 And I know he made the decision to plead guilty and that falls
20 was a bad, bad decision for him and a wrong decision. And
21 that's all he's telling the Court, it was a wrong decision, and
23 allowed to withdraw.
2 Government just cuts him to his knees and indicts him, while
7 Where does that leave our country? You can't listen to your
8 lawyers and, if you do, you risk the run [sic] of being
9 indicted?
12 you.
1 plea; and the Court having weighed and considered the testimony
2 of both the Defendant and his former attorneys, Don Samuel and
4 plea of guilty; and the Court having weighed and considered the
5 testimony of the agent to whom this case was assigned; and the
7 into evidence by both the Defendant and the Government; and the
10 to the motion; and the Court having weighed and considered the
21 matters at issue in this case; and the Court having read and
23 the Government; and the Court having applied the law applicable
5 and the Court having heard oral argument of counsel, the Court
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1 C E R T I F I C A T E
7 87, are a true and correct copy of the proceedings in the case
8 aforesaid.
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Amanda Lohnaas
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Amanda Lohnaas, CCR-B-580, RMR, CRR
13 Official Court Reporter
United States District Court
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