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1

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. 1:08-CR-82-CC
)
6 CHRISTOPHER STOUFFLET, )
Defendant. )
7

10 Transcript of the Motion to Withdraw Guilty Plea Proceedings


Before the Honorable Clarence Cooper
11 September 23, 2009
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: Lawrence J. Zimmerman, Esq.

21

22

23 Amanda Lohnaas, RMR, CRR


Official Court Reporter
24 United States District Court
Atlanta, Georgia
25 (404) 215-1546
2

1 INDEX

2 Witnesses for the Defense:

3 Christopher Stoufflet
Cross-Examination, Continued 4
4 Redirect Examination 13

5 Witnesses for the Government:

6 Edward T.M. Garland


Direct Examination 17
7 Cross-Examination 33
Redirect Examination 37
8
Robert Kuykendall
9 Direct Examination 40
Cross-Examination 50
10
Argument by the Government 55
11
Argument by the Defense 69
12
Ruling by the Court 84
13

14

15

16

17

18

19

20

21

22

23

24

25
3

1 (Wednesday, September 23, 2009, 1:35 p.m.)

2 THE COURT: Thank you, please be seated. We are

3 ready to resume.

4 Mr. Stoufflet, had he finished?

5 MR. ZIMMERMAN: The Government still had him on

6 cross-examination.

7 THE COURT: Okay.

8 MR. ZIMMERMAN: Mr. Chartash said he would only be

9 one minute.

10 MR. CHARTASH: It will be short, Your Honor. Just to

11 give Your Honor a preview of what we anticipate the remainder

12 of the day to be is, and to conclude today, most assuredly, is

13 brief additional cross-examination, obviously redirect, however

14 long that will be. We then, and if that's the only witness,

15 and we understand from Mr. Zimmerman, we understand that is the

16 only additional witness that defense will call, we have two

17 brief witnesses, Mr. Garland and the special agent, Robert

18 Kuykendall, who will testify to brief points. And then we hope

19 short argument, brief arguments about it, Your Honor.

20 THE COURT: No problem, thank you. Mr. Stoufflet,

21 you're under the oath you took initially, okay?

22 THE WITNESS: Yes, sir.

23 THE COURT: Thank you.

24 Mr. Chartash, you may resume your cross-examination.

25 MR. CHARTASH: Thank you, Your Honor.


4

1 CROSS-EXAMINATION (Continued)

2 BY MR. CHARTASH:

3 Q. Mr. Stoufflet, in your direct testimony the other day you

4 went through a sequence of events related to your efforts to

5 meet with Mr. Sommerfeld and myself. Do you remember that?

6 A. Yes, sir.

7 Q. And in fact, Mr. Stoufflet, you stated that you longed,

8 longed for the day that you could meet with Mr. Sommerfeld and

9 myself, correct?

10 A. Yes, sir.

11 Q. You were so anxious to meet with us that you were willing

12 to meet with us without your attorney being present, correct?

13 A. Yes, sir.

14 Q. And you were so anxious to meet with us that indeed your

15 father came to meet with Mr. Sommerfeld and myself requesting a

16 meeting on your behalf?

17 A. Yes, sir.

18 Q. We, that is Mr. Sommerfeld and myself, couldn't meet with

19 you without your attorney present, or at least an

20 acknowledgment that he didn't want to be present, correct?

21 A. I'm not sure that's exactly how it went as far as he

22 didn't want to be present, but I understood that supposedly I

23 took a risk by meeting with -- actually, I think the other day

24 you called it stupid of me to meet with you guys.

25 Q. Yes, indeed, and I'll do that again today.


5

1 A. Well, I mean, you know, I don't see how stupid it is to

2 meet with somebody to discuss the truth.

3 Q. And we already went through the handling the truth issue

4 once before. But let's do this, my point is just this, is that

5 we couldn't meet with you without the approval of your attorney

6 of record, so we sought his approval. Do you remember that?

7 A. I'm not sure you sought his approval. I did meet with you

8 without my attorney present. I don't know what --

9 Q. And that was agreeable to you, you didn't want your

10 attorney present, in fact?

11 A. I was fine meeting with you, Mr. Sommerfeld or

12 Mr. Kuykendall without an attorney present.

13 Q. Without your attorney present, right?

14 A. That's correct.

15 Q. That was agreeable to you?

16 A. Yes, sir.

17 Q. That was okay with you?

18 A. Yes, sir.

19 Q. And if I showed you an e-mail where Mr. Samuel said that

20 was okay with him, would that refresh your recollection?

21 A. If it's in an e-mail, it's fine.

22 Q. Well, here, let me just show you in --

23 MR. CHARTASH: What exhibit are we up to?

24 MR. SOMMERFELD: 8.

25 Q. (By Mr. Chartash) Let me show you what's been marked as


6

1 Government's Exhibit 8, an e-mail from your counsel. Do you

2 recognize it?

3 A. I think it's more to this e-mail than just that.

4 Q. It's a longer e-mail thread, is what you're saying?

5 A. Yes. There's probably some other relevant information

6 that's not here so we might want to include that.

7 Q. I'll be happy to do but essentially it says that -- he's,

8 your attorney, Don Samuel, okay with you meeting with --

9 A. Yeah, that's what it says. I don't know what the rules

10 are but that's what the e-mail says, yes, sir.

11 MR. CHARTASH: Your Honor, Government moves

12 Government's Exhibit 8 into evidence.

13 THE COURT: Have you seen it?

14 MR. ZIMMERMAN: My client is actually right, I object

15 to -- the rule of completeness is my objection, Your Honor.

16 There's obviously a string of e-mails.

17 THE COURT: What's the exhibit?

18 MR. CHARTASH: I'm sorry, Your Honor?

19 THE COURT: What is it?

20 MR. CHARTASH: This is just an e-mail from him, there

21 may be other e-mails attached to it. I don't have them with

22 me.

23 THE COURT: It's an e-mail from him, the witness?

24 Stoufflet, did --

25 MR. CHARTASH: From Don Samuel to Larry Sommerfeld


7

1 and myself saying: "I have no objection to Chris meeting with

2 Agent Kuykendall to furnish documents, answer any questions" --

3 MR. ZIMMERMAN: Judge, I just object. The Government

4 wants to read you what the e-mail is.

5 THE COURT: Does he know of this e-mail?

6 MR. CHARTASH: Your Honor, I believe he said he

7 recognized it but believes it's part of a longer e-mail string

8 or thread, as it's called.

9 THE WITNESS: I'm sure it's part of a longer e-mail

10 string that says much more than that, Your Honor.

11 THE COURT: Did you receive anything other than what

12 you have?

13 MR. CHARTASH: There may be other things, long ones.

14 We've received many, many e-mails.

15 THE COURT: I'm going to exclude it, then, if there's

16 a possibility.

17 MR. CHARTASH: Okay, that's fine.

18 THE COURT: Excluded.

19 MR. CHARTASH: Okay.

20 Q. (By Mr. Chartash) And just to go over what you mentioned

21 before, is that we in fact did meet with you? That is Mr.

22 Sommerfeld, Mr. Kuykendall, myself, Special Agent Kuykendall,

23 met with you a couple of times, correct?

24 A. Yes, sir.

25 Q. Once with your attorney and once without your attorney,


8

1 right?

2 A. Yes, sir.

3 Q. And that was okay with you? Yes or no?

4 A. Yes.

5 Q. Okay. And just for the record, we had mentioned that we

6 can't advise you, but told you our opinion was that it was

7 foolish for you to meet with us without your attorney, correct?

8 That is, Mr. Sommerfeld and myself, correct?

9 A. Yes, something along those -- something -- you cautioned

10 against me meeting with you without my attorney present. And I

11 said, once again, there's nothing to hide so I didn't see the

12 harm in meeting with you guys. I think also -- may I elaborate

13 a little bit more?

14 THE COURT: You stated that since it was about the

15 truth you were willing to go ahead without your attorney. I

16 think that's the gist of it.

17 THE WITNESS: Okay.

18 THE COURT: Anything else you might want to say you

19 might want to confer with your lawyer, he might want to cover

20 it on recross. But just answer his questions, okay?

21 Go ahead, Mr. Chartash.

22 MR. CHARTASH: Thank you, Your Honor.

23 Q. (By Mr. Chartash) So after you meet with us, we do not

24 take the action that you want us to take, correct?

25 A. No. You do not disclose new evidence that was presented


9

1 to the Court that's relevant to the case.

2 Q. Right, and we're going to go through that --

3 A. Good.

4 Q. -- as well with Mr. Kuykendall. So after we don't do what

5 you want to do, you then file a complaint against Mr.

6 Sommerfeld and myself to the acting assistant attorney general,

7 Ms. Rita Glavin, do you remember that?

8 A. Uh-huh.

9 Q. And as one of the points of your complaint, and I think

10 you refer to it as --

11 THE COURT: That was filed with someone in main

12 justice?

13 MR. CHARTASH: Yes, Your Honor. This is acting

14 assistant attorney general, Department of Justice in the

15 Criminal Division, Your Honor.

16 THE COURT: Thank you.

17 Q. (By Mr. Chartash) You complain about Mr. Sommerfeld and

18 myself. And one of your complaints is that you told -- let me

19 just read it, you told prosecutors and Mr. Nahmias that I

20 should remain with said counsel, meaning Mr. Samuel, and they,

21 meaning the prosecutors, exchanged e-mails with me and met with

22 me without counsel being present. Right, remember that?

23 A. Yes, sir.

24 Q. Nowhere did you disclose in your complaint to us that you

25 had agreed to it, right?


10

1 A. Once again, there's more chain of e-mails to get the whole

2 story and, if I'm allowed, I'll be happy to present that, that

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

5 -- basically alluding to you shouldn't have done that because I

6 should -- my attorney should have been present, something along

7 those lines.

8 Q. After the fact? No, we told you that up front, didn't we?

9 A. It's in writing, whatever I have.

10 Q. Right, we told you that up --

11 A. Instead of arguing with you about it can I present that to

12 you in writing?

13 THE COURT: Wait. Go ahead.

14 Q. (By Mr. Chartash) Yeah, you told us -- we told you you

15 ought not, it's not prudent, in our opinion, for you to meet

16 with us without your attorney being present, up front in the

17 beginning, correct?

18 A. Like I said, there's much more to it than that --

19 Q. Just listen to my question --

20 A. You're trying to ask me -- if I don't have it in front of

21 me, I don't feel comfortable answering that question unless the

22 facts are in front of me.

23 Q. That's fine.

24 A. If you only present part of the facts that's not really

25 fair.
11

1 Q. Let me show you what's been marked as Government's Exhibit

2 9.

3 MR. ZIMMERMAN: Your Honor, while he's doing that, I

4 would just impose an objection. I'm not sure of the relevance

5 of all this.

6 THE COURT: I don't know, let me find out. We don't

7 have a jury, let me find out what he's doing. I don't know.

8 MR. ZIMMERMAN: I wanted to speed things up.

9 THE COURT: I don't want to act prematurely, let me

10 find out.

11 MR. CHARTASH: This is towards the end of it.

12 Q. (By Mr. Chartash) Let me show you what's been marked as

13 Government's Exhibit 9 and ask if you can identify it?

14 A. Yes, the letter, uh-huh.

15 Q. This is a letter that you sent with an attachment to the

16 acting assistant attorney general, correct?

17 A. Correct.

18 Q. This is the entire letter, right?

19 A. I'm not sure it's the --

20 Q. Take a look.

21 A. No, I think I included some exhibits, probably, possibly.

22 I need to pull my files.

23 Q. Well, look at the exhibit. There's no exhibits that I see

24 that are mentioned. This is the letter.

25 THE COURT: Does the letter reflect that exhibits


12

1 were enclosed with the letter?

2 THE WITNESS: My file, I don't have and I don't

3 recall and --

4 THE COURT: I said the letter, look at the letter.

5 Is that the letter you wrote?

6 THE WITNESS: Yes, sir, it is.

7 THE COURT: Does that reflect exhibits were enclosed

8 with the letter, like you have enclosures?

9 THE WITNESS: Honestly, I wrote so many letters, Your

10 Honor, I don't know. I probably enclosed some exhibits.

11 THE COURT: Are you going to tender that into

12 evidence?

13 MR. CHARTASH: Yes, Your Honor. Government's Exhibit

14 tenders Government's Exhibit 9 into evidence.

15 THE COURT: I'm going to let it in over the

16 objection.

17 Q. (By Mr. Chartash) And the page that I was referring to,

18 the part that I was referring to was page 6 of 7. Do you want

19 to look at that, please? And it's the middle -- well, the

20 first bullet point on that page.

21 A. Uh-huh.

22 Q. And, again, there's nothing in there where it says that

23 you agreed or consented to meet with us without your attorney,

24 is there?

25 A. There's nothing here, no, right.


13

1 Q. Right, and nothing in the letter that says that either;

2 isn't that right?

3 A. (No verbal response.)

4 MR. CHARTASH: Okay, no further questions.

5 THE WITNESS: I do have the e-mails that --

6 Q. (By Mr. Chartash) I'm just asking you about the letter;

7 I'm not asking you about another e-mail.

8 THE WITNESS: I'm just trying to --

9 THE COURT: I told you, you respond. Okay, thank

10 you, Mr. Chartash.

11 Mr. Zimmerman?

12 MR. ZIMMERMAN: Very briefly.

13 REDIRECT EXAMINATION

14 BY MR. ZIMMERMAN:

15 Q. Mr. Stoufflet, the Government asked you a line of

16 questions, I just want to focus on a couple.

17 Number one, Mr. Chartash referred to your wanting to

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

20 you want your plea withdrawn?

21 THE COURT: What was the question again?

22 Q. (By Mr. Zimmerman) Why do you want to withdraw your

23 guilty plea?

24 A. Because I always insisted on having a fair -- I was told I

25 would have a fair trial. And, once again, that didn't happen.
14

1 I always insisted on it. I always wanted that. I prepared for

2 it and at the last minute when they filed those motions and,

3 like I said, removed that defense from me, I -- I've worked

4 nonstop to try to rectify these matters and have a fair trial.

5 Mr. Chartash's comments the other day about admit,

6 whatever, I think I have every right to sit up here and make it

7 very explicit about how much effort, belief, and if you want to

8 say how much money I spent on lawyers, relying on lawyers,

9 disclosing everything to the lawyers and following all the

10 advice at all times, meeting all the requirements necessary to

11 assert an advice of counsel defense, as I know now, and that

12 not -- and that being removed from me, I have a lot of -- I

13 have a lot of trouble understanding how that was possibly done

14 to me and done in the manner it was done.

15 Q. So let me just speed this along for the Court. So what

16 you're saying is you want a trial because you believe you have

17 a viable defense?

18 A. I have a viable defense and it's all in written format,

19 it's all documented. Everything that I've done is documented

20 in the legal invoices from the law firms that could be

21 referenced and the all the advice that was given that's

22 referenced in those legal invoices, I followed. Whether this

23 crime is classified as an 841, whatever, but I think I qualify

24 to rely on the legal advice I received in good faith and

25 following good faith.


15

1 Q. And are you of the opinion that Mr. Samuel gave you the

2 improper advice to plead guilty? Is that what you're saying?

3 A. Yes. They created a circumstance for me out of the clear

4 blue, because all along it was -- I was -- even the

5 Government's position was I was going to be able to assert an

6 advice of counsel defense. That was my only defense, I had no

7 other defense. I wouldn't even have gotten in this business if

8 I didn't have no lawyers to rely on and for them to remove that

9 the last minute, and Don Samuel, in an e-mail, he states that

10 him and Ed, authored it was going to create the impossibility

11 of me asserting that advice, which --

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

14 couldn't raise an advice of counsel defense, that they were

15 wrong; that's what you're stating?

16 A. To me, but I'm not the lawyer here. But, I mean, I was

17 never told --

18 Q. Chris, let me ask you to answer my questions and if the

19 Court wants you to elaborate, Judge Cooper will ask you to.

20 A. Okay.

21 MR. ZIMMERMAN: May I have a little leeway just to

22 lead him along since it's redirect?

23 MR. CHARTASH: No, no.

24 THE COURT: Check with counsel. He may --

25 MR. CHARTASH: Your Honor, that's not the rule.


16

1 THE COURT: Okay, no, go ahead. Don't lead him. You

2 don't have to lead him.

3 MR. ZIMMERMAN: Okay.

4 Q. (By Mr. Zimmerman) You testified that you had all this

5 advice, right?

6 A. Yes.

7 Q. From the lawyers you hired for your business. So

8 ultimately, again, succinctly, like the Court asked you, why

9 did you then all of a sudden plead guilty?

10 A. I didn't have no option at that time.

11 Q. What do you mean by that?

12 A. I was given no option. When the Government filed the

13 motion and put the 72-hour deadline, if they -- once again, I

14 felt I didn't have a chance, an opportunity to -- my -- I

15 wasn't willing to go to trial facing 292 months to 365 months

16 in prison. Okay? I was -- that was -- the day before they

17 filed that motion I was willing to take those chances. And

18 when they filed that motion and declared it as a matter of law

19 and removed that ability from me, I felt defenseless. And

20 that's what Don Samuel and them --

21 Q. Did your lawyers tell you you were defenseless at that

22 point?

23 A. Did they tell me I was defenseless?

24 Q. Yes.

25 A. Yeah, they said you don't have a defense.


17

1 MR. ZIMMERMAN: Okay. Nothing further.

2 THE COURT: Mr. Chartash, anything on recross?

3 MR. CHARTASH: No, Your Honor, nothing further.

4 THE COURT: Thank you, Mr. Stoufflet, you may step

5 down.

6 Mr. Zimmerman, call your next witness.

7 MR. ZIMMERMAN: Your Honor, we don't have any more

8 witnesses.

9 THE COURT: Thank you. Are there any witnesses to be

10 called by the Government? Two?

11 MR. SOMMERFELD: Two, correct, and we'll try to keep

12 them as brief as possible.

13 And, of course, Your Honor, these are really response

14 witnesses. It's the Defendant's burden, the only witnesses so

15 far have been defense witnesses.

16 The United States calls Ed Garland to the stand.

17 THE COURT: Thank you, Mr. Garland, please come

18 forward. Please step up, face me, and raise your right hand.

19 EDWARD T.M. GARLAND,

20 being first duly sworn or affirmed, was examined and testified

21 as follows:

22 THE COURT: Please be seated. Make yourself

23 comfortable. Please state your full name for the record.

24 THE WITNESS: Edward T.M. Garland.

25 THE COURT: Thank you, Mr. Garland.


18

1 Mr. Sommerfeld, your witness.

2 MR. SOMMERFELD: Thank you, Your Honor.

3 DIRECT EXAMINATION

4 BY MR. SOMMERFELD:

5 Q. Good afternoon, Mr. Garland.

6 A. Good afternoon.

7 Q. First of all, where do you work? What's your occupation?

8 A. I'm a lawyer, work here in Atlanta, in Buckhead is my

9 office.

10 Q. Tell us about your practice. What kind of lawyer are you?

11 A. I'm generally a trial lawyer with heavy emphasis on

12 criminal defense, personal injury work, things of that nature.

13 Q. How long have you been a trial lawyer?

14 A. Well, let's see, since November of 1964.

15 Q. Has your practice included criminal defense since then?

16 A. Extensively.

17 Q. Do you want to tell us a few of your more notable clients?

18 MR. ZIMMERMAN: Your Honor, I think we'll stipulate

19 to Mr Garland's reputation.

20 THE COURT: No, no. I'm familiar with his

21 reputation, there's no need to go into that.

22 Q. (By Mr. Sommerfeld) Handled how many guilty pleas?

23 Uncountable number of guilty pleas?

24 A. It would be very hard to say but in the general practice

25 of criminal law, approximately 80 to 85 percent of all your


19

1 cases you have result in guilty pleas. So I've been involved

2 in several thousand, I would say.

3 Q. In federal court, in the Northern District of Georgia as

4 well, right?

5 A. Had many cases in the Northern District of Georgia since I

6 began practicing.

7 Q. Also handled any number of trials, right?

8 A. I have had a number of trials in front of many different

9 judges in this court.

10 Q. Including recently you've handled trials in this court?

11 A. Yes, I have.

12 Q. There's a point when you started representing the

13 Defendant in this case, correct?

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.

18 Q. And Defendant has talked a lot about being given 72 hours

19 to accept a plea. Is it fair to say plea negotiations or a

20 possible plea resolution of the case began even prior to the

21 indictment in this case?

22 A. I'm a little vague on my memory on that but my approach

23 almost always is to determine what the alternative is that we

24 are facing in a case and one of the alternatives is what the

25 Government will do if a plea is worked out.


20

1 It's not to say that that is the direction we would

2 take, but we always want to know what the option is and have

3 discussions about what the Government's point of view is, what

4 the charge would be, what the recommendation would be, things

5 of that nature. But I'm not able to recall exactly when it

6 started for us to try to determine whether or not the option of

7 a plea is one we should pursue.

8 Q. Well, let me show you this just to put some sort of bound

9 on it.

10 MR. SOMMERFELD: And this was Exhibit 1, Your Honor,

11 submitted in conjunction with the United States' Response to

12 Defendant's Motion to Withdraw Guilty Plea.

13 THE COURT: Thank you.

14 Q. (By Mr. Sommerfeld) Do you recognize that?

15 A. Yes.

16 Q. Is that a letter that you received in June 2007?

17 A. Yes.

18 Q. And did it include a copy of a guilty plea for your

19 consideration?

20 A. Yes.

21 Q. So at least as far as June 2007 there was at least a

22 structure of a guilty plea that was starting to be discussed;

23 is that fair?

24 A. A dialogue about what it would contain. And I always feel

25 that in that process if the Government will put it all in


21

1 writing it gives us something specifically to analyze.

2 Q. But certainly nothing was agreed on in June 2007, right?

3 A. That's correct. I always want to know what the options

4 are.

5 Q. Absolutely. Let me bring your attention to November 2007.

6 Do you remember plea discussions that were ongoing through

7 November 2007, October and November?

8 A. Yes.

9 Q. Now, were plea agreements being exchanged then?

10 A. Yes.

11 Q. Do you recall, regarding the plea agreements in October,

12 November 2007, what material terms were left to discuss by the

13 end of November 2007?

14 A. I think the forfeiture amount was left.

15 Q. Other than that, was every other material term of the plea

16 agreement pretty much settled upon?

17 A. I probably would need to look at precisely the agreement,

18 the date it was signed, to be able to 100 percent answer that.

19 But we agreed on terms of the agreement that would be reflected

20 in the agreement. But there was issue about forfeiture of

21 assets. It was very complicated and we were exchanging

22 information back and forth.

23 Q. About the forfeiture?

24 A. About the forfeiture aspects.

25 Q. But the sentencing guidelines recommendations, those had


22

1 all been agreed upon?

2 A. They had been agreed upon.

3 Q. And, in fact, back then, do you recall the last issue

4 before the forfeiture that was discussed and agreed upon?

5 A. When I say agreed upon, the Government agreed as to what

6 they would do and I was in discussions with the client about

7 his agreement to what the Government would agree to.

8 Q. And --

9 A. And the last thing that I remember was -- I'm a little

10 vague about the sequence, but we had discussions about the

11 right to ask for a departure downward that had not been

12 included in the original discussions.

13 Q. Might refer to it as Booker, the right to argue Booker?

14 A. The right to make Booker arguments and that we would not

15 be limited to what had been agreed upon but would be allowed to

16 argue for less.

17 Q. And did the Government agree to permit that by November

18 2007?

19 A. The Government ultimately agreed to permit that. I'm just

20 not able to state the date.

21 Q. I understand, but it was in or around November 2007?

22 A. That would be correct.

23 Q. And once that was agreed upon, the only thing left was the

24 issue of dollars, forfeiture money, correct?

25 A. That would be correct.


23

1 Q. And did you discuss the plea agreement with your client

2 back in October, November 2007?

3 A. We had numerous discussions about what the content of the

4 Government's proposal was and its effect.

5 Q. Thorough discussions?

6 A. What?

7 Q. Thorough discussions?

8 A. I believe they were thorough discussions.

9 Q. Continued to discuss that plea agreement and the

10 possibility of a plea even after November 2007?

11 A. Yes.

12 Q. In December and January 2008 and February 2008?

13 A. Yes.

14 Q. Up to the time of the plea in early March 2008?

15 A. Yes.

16 Q. And in talking about that, you talked about the various

17 rights that the Defendant would have that he'd be giving up if

18 he pled guilty, correct?

19 A. That was thoroughly covered.

20 Q. Okay. Now, in March, how did it end up that your client

21 ended up pleading guilty? Can you characterize that for us?

22 THE COURT: What was the question again? I'm sorry.

23 Q. (By Mr. Sommerfeld) Would you please characterize for us

24 your client's ultimate decision to plead guilty in March 2008?

25 A. Chris appeared in my office and said he had made the


24

1 decision to plead. Up to that time I had been asking what his

2 decision was. I had strongly by that time recommended that he

3 plead and had told him I believed it was in his best interest.

4 He had not agreed to plead. He was very reluctant to plead.

5 After having thorough discussions both with myself and

6 Don -- and he ultimately would discuss things with Don Samuel,

7 my partner, and with me -- he appeared in my office and said

8 that he had decided to accept the plea.

9 Q. And did --

10 THE COURT: Let me ask you this, Mr. Garland. How

11 long had he taken this under consideration before he came into

12 your office and finally told you he was going to plead guilty,

13 roughly?

14 THE WITNESS: For a long time.

15 THE COURT: For a long time.

16 THE WITNESS: It had been an evolving process, Your

17 Honor, in which he would ask questions, we would deal with

18 issues. The great portion of the issue we dealt with was our

19 ability to present our advice of counsel, I would say umbrella

20 of issues in the defense of his case and a lot of discussion

21 about that. So it evolved over a long time.

22 THE COURT: When you say a long time, over months?

23 THE WITNESS: I would say, my memory would be --

24 THE COURT: Your best recollection.

25 THE WITNESS: More than two weeks.


25

1 THE COURT: More than two weeks, okay.

2 THE WITNESS: And perhaps considerably more than

3 that. But date-wise, he would come in, we would talk and he

4 was very conflicted about it.

5 Q. (By Mr. Sommerfeld) And more than two weeks, that's the

6 ultimate plea. In fact, you had been discussing the plea

7 agreement with him and the potential ramifications of a plea

8 for months, as you just said, back to October or November 2008?

9 A. Yes, for a long time.

10 Q. We've heard a lot -- and the plea that was ultimately

11 entered, before I leave that, in March 2008, was the same plea

12 that had been negotiated in November but now with the

13 forfeiture amount added; is that correct?

14 A. That's correct.

15 Q. There had been talk about deadlines and a motion in limine

16 so I want to discuss that with you. The United States filed a

17 motion in limine to exclude the advice of counsel defense at

18 the deadline for motions in limine being filed. Do you recall

19 that?

20 A. Yes.

21 Q. Did you know when that motion in limine would be decided

22 by the judge?

23 A. No.

24 Q. Does any counsel know when the judge is going to issue an

25 opinion on a motion?
26

1 A. No.

2 Q. Did you tell Mr. Stoufflet, the Defendant, that because

3 the Government had filed a motion he couldn't raise the

4 defense?

5 A. No.

6 Q. Did you ever tell him because the Government filed a

7 motion that he's defenseless?

8 A. No.

9 Q. There's been talk about a short deadline. The Defendant

10 pled a week before trial, correct?

11 A. I think so.

12 Q. Within a week. Was a deadline set on the Defendant

13 accepting a plea by the Government?

14 A. Yes. There had been a number of deadlines and we had had

15 discussions saying we needed more time. And we did need more

16 time because Chris was really reflecting over his struggle with

17 pleading guilty and it was where the Government would say,

18 well, listen, we've got to have it now. And I would keep

19 begging, saying that we hadn't been able to reach a decision.

20 So it kind of kept getting extended.

21 When that happens, Your Honor, you're always trying to

22 determine is the deadline the deadline. And I concluded

23 finally that we had a deadline that was a real deadline and

24 that the plea offer would be withdrawn. At least I believed

25 that the Government would not give any more concession or delay
27

1 in making the decision and that's what they told me.

2 And I told Chris that I believed that and that

3 therefore it was critical that the benefits of the plea

4 agreement be accepted if they ever were and that the decision

5 be made as to whether or not to plead or go to trial and I

6 strongly advised him that I thought it was in his best interest

7 here in this court before you to enter a plea.

8 Q. Just to cover briefly, you mentioned this wasn't the first

9 deadline. There had been ample previous deadlines?

10 A. There had been a number of deadlines that I would always

11 say we're working on the resolution. I would say my client is

12 struggling with what he wants to do finally and would say,

13 well, let's get to the bottom of it, we have a trial upon us,

14 if we're going to plead this is it, et cetera.

15 Q. But at your request the United States would extend the

16 deadline?

17 A. That is correct.

18 Q. The Defendant in his testimony stated that he was

19 railroaded into a plea. Was he railroaded into a plea?

20 A. I don't know what Chris exactly means by the term

21 "railroaded." If that term is used to mean he was coerced by

22 Don or I to plead guilty, that would be incorrect. If he means

23 he felt like he had no choices left and gave up on his

24 resistance to pleading, faced with the strong advice from Don

25 and I, he was receiving strong advice, that advice was in fact


28

1 coupled with the statement it had to be ultimately his

2 decision. For a long time I did not give him advice on that

3 but we reached a point where I felt like I should. I kept

4 saying for a long time it would have to be his decision, we

5 could go one way or the other.

6 So the term "railroading," if it means coerced, no, he was

7 not.

8 Q. Well, we're called counselors, right? It's your job to

9 counsel clients, so it's your job to give him advice, correct?

10 A. That's correct.

11 Q. Even strong advice, right?

12 A. That's correct, as long as you don't override his free

13 will.

14 Q. Did you override his free will?

15 A. I do not believe I did.

16 Q. You mentioned, before I leave this topic, your advice was

17 to take the plea in March?

18 A. That is correct.

19 Q. You talked about the negotiations in November. Was your

20 advice for him to take the plea in November?

21 A. Yes.

22 Q. And, again, no motion in limine had been filed at that

23 time but that was your advice based on a strategic decision?

24 A. All of the facts in the case that we had analyzed, and we

25 had thoroughly analyzed the case, there was always more that
29

1 could be done in this case and the issue of whether or not we

2 could get the evidence in of all the legal advice that he was

3 given and upon which he did rely and whether we effectively

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.

9 Q. Even back in November?

10 A. Yes.

11 Q. The Defendant said during his testimony that you pressured

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

14 throughout what would happen during the plea hearing?

15 A. I think it went like this: I reviewed with him what would

16 happen at a plea. I reviewed with him that he would have to

17 acknowledge, in fact, that he would guilty -- was guilty. I

18 told him that the plea would not be accepted if he did not

19 state that he was guilty. And I explained that we would listen

20 to the facts that were presented and he should listen to those

21 and acknowledge the truth of those facts if they were true;

22 that every precise fact recited by the Government wouldn't have

23 to be 100 percent that we agreed to but we had to agree that

24 there was enough in factual recitation what the Government

25 stated to be true that would support a guilty plea.


30

1 Q. And let's talk about those facts in this plea agreement.

2 Slightly unusual but not unheard of, the recitation of facts

3 was actually included in the plea agreement, correct?

4 A. Correct.

5 Q. Actually included back in November in the plea agreement,

6 right?

7 A. Yes.

8 Q. So plenty of opportunity to go over the facts that the

9 Government was going to recite?

10 A. Yes.

11 Q. Did you go over those with the Defendant?

12 A. Yes.

13 Q. Thoroughly?

14 A. Yes.

15 Q. Did you ever tell the Defendant to do anything other than

16 tell the truth?

17 A. No.

18 Q. Did you advise him to sign and give answers that were

19 anything but the truth?

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

23 during the plea hearing, correct?

24 A. Yes.

25 Q. And you told the judge that you believed it was a plea
31

1 given freely and voluntarily, correct?

2 A. Yes.

3 Q. The last point I think I want to discuss is the Defendant

4 mentioned during his testimony that it was your plan with him

5 to not argue innocence at the time of the plea but to argue

6 innocence at sentencing. Was that your plan, to argue

7 innocence at sentencing?

8 A. It would not have been my plan to assert his innocence. I

9 would have strongly asserted that all of the legal advice he

10 got, for which he paid millions of dollars, were mitigation,

11 facts that we would have strongly urged this Court to consider.

12 And I believe in our submission of the presentence report we

13 said you should consider and it was detailed and it was

14 documented what should be considered.

15 And we would have presented that strongly as evidence

16 mitigating the degree of his guilt and certainly calling for

17 leniency in punishment, given the unusual nature of the law,

18 the way the law kept changing, the fact that he paid millions

19 for some of the best attorneys in America, none of whom told

20 him what you're doing is illegal, none of -- that is, that

21 you're committing a crime, stop. Some of them said that he

22 might be committing illegal acts but they were -- but none of

23 them said you stop, don't do this business, it's a crime.

24 And that included Buddy Parker, Craig Gillen, Jerry

25 Froelich, Arent Fox, Kilpatrick Stockton, lawyers, various


32

1 lawyers that were hired full-time.

2 So I felt that there was -- and I can understand him

3 putting the words on it that he thought I said we would argue

4 that he was innocent, but we would have said, no, he is guilty

5 under the facts that the Government can prove and that he knew

6 about, but there's enormous mitigation that we would have urged

7 the Court to consider.

8 And that was one of the reasons I said it was in his

9 best interest to plead, that if we -- but we were running the

10 risk the Court might rule it all out in our trial and then we

11 wouldn't have much of an ability to get him acquitted.

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

14 it was a mixed bag factually, as well as legally, correct?

15 A. There was some bad facts in the advice of counsel.

16 Q. And so it was part of this strategic decision, even as far

17 back as November, to take the plea?

18 MR. ZIMMERMAN: Objection; leading, Your Honor.

19 THE COURT: Try not to lead.

20 THE WITNESS: We were considering that at all times.

21 Q. (By Mr. Sommerfeld) Understood.

22 A. And delayed furnishing our documents to the Government as

23 much as I could until we had to reach crisis point that we

24 would have our documents blocked if we didn't turn them over.

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.

2 Q. And that was the position, you were going to present

3 evidence in mitigation, I take it?

4 A. Evidence in mitigation. I can understand that he

5 misunderstood that.

6 MR. SOMMERFELD: May I have just one moment?

7 (Pause in the proceedings.)

8 MR. SOMMERFELD: Your Honor, I have no further

9 questions of this witness.

10 THE COURT: Mr. Zimmerman?

11 MR. ZIMMERMAN: Very brief, Your Honor.

12 CROSS-EXAMINATION

13 BY MR. ZIMMERMAN:

14 Q. Good afternoon, Mr. Garland.

15 A. Good afternoon, sir.

16 Q. I'm just going to cover real brief areas with you. You

17 stated that Chris Stoufflet was conflicted about pleading

18 guilty, right?

19 A. Very conflicted.

20 Q. And Chris sometimes liked to mull things over for a long

21 period of time?

22 A. That is true.

23 Q. And the Government asked you back, I think it was starting

24 November 2007, there were some plea negotiations that had begun

25 to start? They started November 2007?


34

1 A. I always was trying to figure out what's the best he could

2 get out of the Government --

3 Q. As we all do.

4 A. -- and would negotiate. But until Chris finally said he,

5 in fact, would do it, it was always subject to the client's

6 determination, in fact, that he would do it.

7 And sometimes when you negotiate like that, as you

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

12 what was going on.

13 Q. Sure, it's a give and take?

14 A. It was give and take.

15 Q. And this is a pretty complex case?

16 A. I felt so.

17 Q. This wasn't the normal run-of-the-mill drug case where

18 someone sold some drugs on the street?

19 A. No. It had unique legal issues.

20 Q. Would you agree the reason in the end Chris wanted to

21 plead guilty was --

22 A. Excuse me, I did not hear what you said.

23 Q. I'm sorry. You would agree that Mr. Stoufflet decided to

24 enter his plea in March 2008, because the Government was moving

25 to exclude his advice of counsel defense?


35

1 MR. SOMMERFELD: Objection; calls for speculation.

2 He can't testify why the Defendant --

3 THE COURT: I'll let him answer the question.

4 THE WITNESS: I believe that the Government's motion

5 had a substantial impact on Chris, from my conversations with

6 Chris. And I think it was that final moment when he was

7 considering the risk that that motion would be granted, that

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

10 or could not happen.

11 Q. (By Mr. Zimmerman) The fact that he might -- his advice

12 of counsel defense would be removed would basically -- would

13 leave him defenseless at that point?

14 A. It would have been extremely difficult.

15 Q. So that that factor, as you termed it, was actually the

16 turning point for Chris in pleading guilty?

17 A. That fact had been discussed, the possibilities, but it

18 crystallized with the Government's strong assertion in its

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

21 for us as we were trying to read what the judge would do from

22 our prior motion to dismiss the case and -- but there's no

23 doubt in my mind that the filing of that motion and the

24 realization that his defense might be removed played a major

25 role in his thought process.


36

1 Q. And that was in March of 2008?

2 A. Whatever the record shows as to when he responded.

3 Q. Let me turn to, there's some testimony about an associate

4 of yours, David Levitt, previous testimony, that had also

5 worked on Chris's case.

6 A. Yes.

7 MR. SOMMERFELD: Your Honor, may I object? I think

8 this is going to be beyond the scope of direct. I could wait

9 for the question but there was no question on direct about

10 David Levitt.

11 MR. ZIMMERMAN: There's some previous testimony.

12 This goes to the advice Mr. Garland, Mr. Samuel may have given

13 and --

14 THE COURT: What's the question? Let me hear the

15 question.

16 Q. (By Mr. Zimmerman) David Levitt also worked on Chris's

17 case, right?

18 A. Yes.

19 Q. And did he assist Chris through some of these plea

20 negotiations?

21 MR. SOMMERFELD: Objection; it's beyond the scope.

22 MR. ZIMMERMAN: Beyond the scope, there's discussion

23 about plea negotiations, I'm allowed to inquire as to who was

24 doing the negotiating.

25 THE COURT: Who was doing --


37

1 MR. ZIMMERMAN: Who did the negotiating with the

2 plea. I mean, did Mr. Levitt assist in the negotiations with

3 the Government or was it just Mr. Garland and Mr. Samuel?

4 THE COURT: I'll let you ask him that. Go ahead.

5 THE WITNESS: Mr. Levitt would have talked frequently

6 with Chris and would have intersected the process and it wasn't

7 uncommon for him to talk with Chris. But Chris would

8 ultimately talk with myself or Don and my recollection is that

9 I did, and then sometimes Don did, the negotiation of the

10 contents of the plea.

11 MR. ZIMMERMAN: Thank you.

12 THE COURT: Thank you.

13 Anything on redirect, Mr. Sommerfeld?

14 MR. SOMMERFELD: Very briefly, Your Honor.

15 REDIRECT EXAMINATION

16 BY MR. SOMMERFELD:

17 Q. You mentioned the motion in limine played a part, the fact

18 that defense might be removed. Was the Government's filing of

19 the motion in limine the first time you discussed with the

20 Defendant the possibility that his defense might not be

21 applicable at all?

22 A. No.

23 Q. You had discussed that earlier on with him?

24 A. Any number of times we had discussed that possibility and

25 we discussed how we would at trial attempt to get all this


38

1 information before the jury and get the judge to admit it.

2 Q. Because that was going to be difficult as well, and you

3 knew that even before the Government's motion, correct?

4 A. Well, it was going to be something where we knew the

5 Government was going to resist it mightily. You all discussed

6 with us at length why you believed it was not admissible. Both

7 Mr. Chartash and yourself asserted that it was not relevant and

8 we asserted it was, and we debated, as lawyers debate, back and

9 forth about it. We, of course, felt our side was correct --

10 Q. Of course.

11 A. -- and felt like, you know, there was a possibility that

12 we would succeed in that.

13 Q. But the filing of the motion in limine was not a shock to

14 you?

15 A. No. I think we had predicted at some point it would come.

16 Q. You mentioned --

17 A. I would hope -- I was hoping that you all would lay back

18 and I'd get to make an opening statement and get it in front of

19 the jury before you kept it out, or that the judge might agree

20 with me.

21 Q. Last point you mentioned, the actual innocence, if there

22 was no advice of defense counsel, defense counsel mentioned

23 here that that could be a problem. Is that because -- was

24 there in the defense strategy, was there any doubt that the

25 Defendant in fact did the actions alleged in the indictment?


39

1 A. He never contended that he did not do the acts. He always

2 conceded that he was in the business. This was not about Chris

3 saying something hadn't -- I mean, the core facts, there were a

4 lot of peripheral claims from some witnesses and others that we

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

7 reveal the falseness of some claims of the Government

8 witnesses.

9 But on the key facts as alleged in the indictment, as

10 set forth in the plea agreement, there never really was a

11 dispute that those events occurred. The question was his

12 intent and his right to raise a defense of lack of specific

13 intent.

14 Q. Because of the advice of counsel he received?

15 A. Because of the advice of counsel in that regard. And it

16 was a difficult decision for me to say I believe it is in your

17 best interest under all the circumstances, because deeply -- he

18 was deeply troubled with the idea that he had committed a

19 crime.

20 MR. SOMMERFELD: I have no further questions, Your

21 Honor.

22 THE COURT: Thank you.

23 Mr. Zimmerman, any additional questions on recross?

24 MR. ZIMMERMAN: One moment, Your Honor.

25 THE COURT: Sure.


40

1 (Pause in the proceedings.)

2 MR. ZIMMERMAN: No further questions, Your Honor.

3 THE COURT: Thank you, you may step down. Thank you,

4 Mr. Garland.

5 Call your next witness.

6 MR. SOMMERFELD: Your Honor, United States calls Bob

7 Kuykendall.

8 THE COURT: Please raise your right hand.

9 ROBERT KUYKENDALL,

10 being first duly sworn or affirmed, was examined and testified

11 as follows:

12 THE COURT: Please be seated. Please state your name

13 for the record.

14 THE WITNESS: Robert Kuykendall, K-u-y-k-e-n-d-a-l-l.

15 THE COURT: Thank you.

16 Your witness.

17 MR. SOMMERFELD: Thank you, Your Honor.

18 DIRECT EXAMINATION

19 BY MR. SOMMERFELD:

20 Q. Good afternoon.

21 A. Good afternoon.

22 Q. Where do you work, sir?

23 A. I'm a special agent with the Food and Drug

24 Administration's Office of Criminal Investigations.

25 Q. How long have you been a criminal investigator?


41

1 A. Well, I've been with the FDA since May of 2002, but I've

2 been a criminal investigator for over 15 years. I spent over

3 seven years as a U.S. postal inspector.

4 Q. Trained in the -- have you been trained in conducting

5 interviews?

6 A. Yes.

7 Q. How many interviews have you conducted?

8 A. Countless. I couldn't tell you. Over hundreds.

9 Q. Are you the case agent on the e-Scripts investigation, the

10 investigation which led to the indictment and conviction of the

11 Defendant in this case?

12 A. Yes, I am.

13 Q. I want to bring your attention to meetings with the

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?

17 A. Yes, I was. Two, two meetings.

18 Q. When did those take place?

19 A. August and in September of 2008.

20 Q. During those meetings do you recall whether or not the

21 Defendant was advised not to speak?

22 A. He was advised on both occasions more than once by more

23 than one individual.

24 Q. Let's talk about the first meeting. Just who was present

25 at the first meeting?


42

1 A. AUSA Chartash, you, myself, Mr. Stoufflet, and Don Samuel.

2 Q. Second meeting, who was present?

3 A. All but Don Samuel.

4 Q. So counsel was present in August but not in September?

5 A. Correct.

6 Q. Do you recall anything discussed at the second meeting

7 with Defendant about his counsel not being present?

8 A. Before the meeting started, I remember, and I wasn't

9 involved in this directly but I heard the conversation where

10 apparently Mr. Stoufflet had a problem with the U.S. Attorney's

11 Office cc'ing Don on the fact that the meeting would take

12 place, as if --

13 THE COURT: Is that Don Samuel? Who is Don? You

14 referred to Don. Don who?

15 MR. SOMMERFELD: Don Samuel.

16 THE WITNESS: Don Samuel.

17 THE COURT: That's what I mean.

18 THE WITNESS: Yes, yes, sir. He wasn't there but he

19 had been copied on this message and Mr. Chartash said that, you

20 know, he's still your record -- he's still your attorney on

21 record, if we're going to meet without him, you know, he still

22 has to know that we're here.

23 Q. (By Mr. Sommerfeld) Let's talk about the substance of

24 these meetings. What did the Defendant, just overall, disclose

25 at the meetings? What did he say?


43

1 A. The first meeting he requested that -- the gist of the

2 meeting was that he wanted to disclose, you know, truth, he

3 wanted to talk about, you know, what was really going on in the

4 case, you know, wanted to get the truth out there.

5 Q. And what was the truth that he wanted to discuss?

6 A. Well, the truth, the focus of the truth was that, if I may

7 paraphrase and I'll go back if you would like me to be more

8 specific, but because he showed us copies of documents related

9 to the lawyers' involvement, specifically primarily it was the

10 contracts, the fact that the lawyers helped write and rewrite

11 and draft the contracts, his point was the lawyers were

12 therefore very intimately involved in the process, they had

13 knowledge, he hired the lawyers to help him do the right thing,

14 et cetera.

15 Q. So he wanted to talk about the lawyers and their

16 participation and advice. What else, what other information

17 did he want to give during those meetings?

18 A. Well, towards the end of the meeting he also talked about

19 things that he did or that e-Scripts did, I guess, at his

20 direction to assure that they were taking accurate information

21 from customers ordering drugs online.

22 Q. Was he asked to provide --

23 A. He was.

24 Q. -- of that? And did he provide documentation of that?

25 A. On the subsequent meeting in September he did.


44

1 Q. So in September he provided documentation of that?

2 A. He did.

3 Q. What did he provide?

4 A. Well, there were other things that he was asked that he

5 provided but it was based on our previous conversation as --

6 well, to directly answer your question, he provided us a binder

7 that showed copies of drivers' licenses of patients -- of

8 customers. There were approximately 37.

9 Q. 37 drivers' licenses?

10 A. Right.

11 Q. 37 customers?

12 A. 37, yes. Some had just a driver's license, some had a

13 driver's license with an attached sheet of date of birth. And

14 his statement was that this was, you know, evidence that he was

15 attempting to determine the truth -- the true identity of these

16 people when they were ordering online.

17 Q. What was the time frame of those drivers' licenses?

18 A. The majority of these were in 2001. They did creep over

19 to 2002.

20 Q. Did he provide anything else than this one binder of 2001,

21 2002?

22 A. No. The other documents were copies of some of the

23 e-mails back to his prior statement about the involvement of

24 the lawyers.

25 Q. But setting aside involvement of lawyers, was he asked to


45

1 provide everything he could regarding verification of

2 information?

3 A. Yeah. There were several -- there were a few topics but

4 part of that related to -- the first part of the first meeting

5 in August, when Mr. Stoufflet asked to meet with us, we had

6 been contacted by a California agency, law enforcement agency,

7 to ask him questions about a case that wasn't really e-Scripts

8 related, it was maybe one of the affiliates was involved in a

9 criminal case, and he agreed to answer questions.

10 In those questions, like we asked him questions about

11 an affiliate and he said I'll provide that. He said that he

12 would provide those but we never received those.

13 Q. So out-of-district litigation, how many questions were

14 asked him?

15 A. 13.

16 Q. 13, okay. But other than those and other than the

17 attorney advice, anything else besides this binder of drivers'

18 licenses?

19 A. No.

20 Q. Let's go back to the binder of drivers' licenses. You

21 said there were a few dozen, three dozen or so?

22 A. Right, 37 of them.

23 Q. Are you familiar with, just generally, how many

24 prescriptions we're talking about in this case came from

25 e-Scripts? Or how about Dr. Smith? There was a trial against


46

1 Dr. Smith, do you recall that?

2 A. Dr. Andre Smith had roughly 120,000.

3 Q. That was one doctor?

4 A. That was one doctor. I know we had well over 300,000.

5 Q. Okay. And so here we have three dozen drivers' licenses,

6 37?

7 A. Right.

8 Q. Could you tell us, did the Defendant explain why these

9 drivers' licenses were collected?

10 A. Right. Well, I started that line of questioning by

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,

13 you know, that if these were the documents that he wanted to

14 produce to us that, you know, the light of truth, that it

15 didn't look very good statistically from a ratio standpoint.

16 Then we got into a conversation of why only those

17 were obtained and Mr. Stoufflet said those were actually

18 triggered after the computer process red flag went up. In

19 other words, if an order triggered an address, two names at one

20 address, then it would then be rejected, then that process

21 would kick in. So that's not a process that took place on all

22 300,000-plus orders.

23 Q. Do you recall generally of all the orders that were put in

24 by computer, how many were automatically accepted versus

25 flagged for rejection?


47

1 A. We had a witness who ran a computer spreadsheet at the

2 primary who I interviewed who said that he --

3 MR. ZIMMERMAN: Objection to hearsay.

4 THE COURT: I'm going to sustain the objection.

5 MR. SOMMERFELD: Okay.

6 Q. (By Mr. Sommerfeld) To your knowledge of reviewing the

7 records in the case and reviewing the database, do you know

8 approximately how many were accepted?

9 MR. ZIMMERMAN: Objection; speculation. He just said

10 he had someone else do it.

11 THE COURT: He's the case agent, right?

12 MR. SOMMERFELD: He's the case agent.

13 THE COURT: I'll let him testify.

14 THE WITNESS: I read a computer-generated report that

15 indicated in the upper 90 percent of all applications were

16 accepted.

17 Q. (By Mr. Sommerfeld) And so were these drivers' licenses

18 from any of those that were accepted like that?

19 A. Well, I would only say no based on his, Mr. Stoufflet's --

20 Q. According to Mr. Stoufflet.

21 A. Correct.

22 Q. So this is from the small portion that weren't

23 automatically accepted?

24 A. Right.

25 Q. And so then they collected drivers' licenses?


48

1 A. Yes.

2 Q. And then if they got the drivers' licenses, they would

3 still send out the drugs even if the computer had rejected

4 them?

5 MR. ZIMMERMAN: Objection to both the form of

6 question, leading, and the relevance. It's going on and on.

7 THE COURT: I'm going to sustain the objection.

8 Don't lead him, please. Objection sustained.

9 Q. (By Mr. Sommerfeld) Did the Defendant tell us anything

10 else about the drivers' licenses that had been collected?

11 A. If you will allow me a second.

12 Q. If you don't recall, that's fine, but whatever you --

13 A. No. His specific was that this started early on, that it

14 improved. He did indicate that there were more to provide and

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.

18 Q. He said there were more to provide. Did he ever provide

19 more?

20 A. No.

21 Q. You were sitting here. You heard during the direct he,

22 during his testimony, he said he gave us innocence of pretty

23 much everything in the indictment. Any other evidence of

24 innocence other than that whole advice of counsel and this

25 binder of drivers' licenses?


49

1 A. No. Those are the two issues of discussion.

2 Q. And, again, just to finish this up, was he advised during

3 this, bad idea, you should go into this with an attorney?

4 A. He was advised prior to both conversations -- and the

5 wording was pretty strong, frankly, stronger, as typically I'm

6 the one doing the interviews out in the field by myself, it was

7 much stronger language than I typically use. You know, we

8 can't understand why you're meeting, you're risking a lot,

9 we're not sure why you're meeting, you know, this is risky for

10 you, et cetera.

11 MR. SOMMERFELD: No further questions, Your Honor.

12 THE COURT: Thank you.

13 Mr. Zimmerman, you may cross-examine.

14 MR. ZIMMERMAN: Not to go too far afield, first of

15 all, does the Government have Jencks they want to turn over at

16 this point?

17 MR. SOMMERFELD: I offered you the notes but if you

18 want his notes, you're welcome to take his notes.

19 MR. ZIMMERMAN: Okay.

20 MR. SOMMERFELD: Your Honor, I offered the notes at

21 our last meeting.

22 Do you want to hand him the notes?

23 THE COURT: I'm sorry?

24 MR. ZIMMERMAN: Jencks, Your Honor, his reports.

25 THE COURT: Okay, go ahead.


50

1 CROSS-EXAMINATION

2 BY MR. ZIMMERMAN:

3 Q. There's a lot of numbers you're testifying to. Agent, did

4 you record this conversation?

5 A. No. We don't typically record conversations.

6 Q. You testified that he wanted to provide you with

7 identifications, right?

8 A. Yes.

9 Q. To show you that there were some customer verifications

10 done, right?

11 A. Yes.

12 Q. To give you some sort of sampling of that, right?

13 A. No.

14 Q. He told you this is all he ever did, was 37 of them?

15 A. He didn't say either way. He said he had documents to

16 show what they were doing. And then I said, dude, there's only

17 37 here, I mean, this is not -- he never indicated there were

18 more. He never indicated it was just a sampling.

19 Q. So you just don't know is the answer?

20 A. That's exactly right.

21 Q. So he might have had thousands more identifications, you

22 just have no idea?

23 A. I would have an idea that there are not based on the fact

24 that we said anything else you have you're welcome to give to

25 us.
51

1 Q. But you don't know the reason why he never came back to

2 give it to you, right?

3 A. That's right.

4 Q. At that point he had already pled guilty, right?

5 A. Oh, yes.

6 Q. So this is way after his guilty plea?

7 A. Exactly.

8 Q. This is in August of 2008?

9 A. Yes, sir.

10 Q. I guess this is only a few months after he pled guilty,

11 I'm sorry.

12 A. Seemed like a long time.

13 Q. Now, Mr. Stoufflet, it's not his responsibility to provide

14 the Government with these documents; it would have been his

15 lawyers', right?

16 A. I guess a combination, I would think. As a criminal

17 investigator, if we subpoenaed him or asked for records, either

18 he would give them to us, but generally he would do it with

19 counsel.

20 Q. Right, but you turn over documents to the Government,

21 right, they're the lawyers?

22 A. Usually.

23 Q. Well, we hope so. And then you provide -- then the

24 Government provides that to the defendants' lawyers, right?

25 A. Right.
52

1 Q. You probably agree same thing would happen, the defendant

2 would turn over documents to his lawyers and they in turn would

3 turn over to the Government, right?

4 A. Yes.

5 Q. And I know you're not an attorney but you would agree

6 that's usually how the lawyer is going to introduce evidence,

7 the Government is allowed to see it first, right?

8 A. Yes.

9 Q. You've never seen up to this point any of these

10 identifications in the whole case?

11 A. Right.

12 Q. The lawyers never provided it to you?

13 A. Right.

14 Q. Okay. So they didn't do their job, I guess, right, by

15 turning that over, Mr. Garland, Mr. Samuel?

16 MR. SOMMERFELD: Objection, Your Honor. I don't

17 think this witness can comment --

18 THE WITNESS: I'm not a lawyer.

19 MR. SOMMERFELD: -- whether or not defense counsel

20 did their job.

21 THE COURT: I'm going to sustain the objection.

22 Q. (By Mr. Zimmerman) Did you ever attempt to contact his

23 lawyer to get more of those identifications?

24 A. Not my job, sir.

25 Q. Do you know if these two lawyers, Mr. Chartash, Mr.


53

1 Sommerfeld, ever tried?

2 A. I have no idea.

3 MR. ZIMMERMAN: Nothing further.

4 THE COURT: Thank you.

5 Mr. Sommerfeld?

6 MR. SOMMERFELD: Nothing further for this witness,

7 Your Honor.

8 THE COURT: Thank you, you may step down.

9 MR. SOMMERFELD: And, Your Honor, the United States

10 has no further response witnesses.

11 THE COURT: Thank you. Before I hear closing

12 arguments from counsel I want to ascertain one thing. Has the

13 Government, has anyone submitted into evidence the plea

14 agreement between the Defendant and the Government?

15 MR. SOMMERFELD: Your Honor, I believe it's already

16 part of the record.

17 THE COURT: Okay, because I did --

18 MR. SOMMERFELD: It's officially on the docket.

19 THE COURT: I'm familiar with that, I just want to

20 make sure it's part of the record and I read the complete

21 record. So are you all ready or do you need a few minutes?

22 MR. ZIMMERMAN: Your Honor, I'm ready but I think

23 since it's my burden I get to open and close. Would the Court

24 allow me to reserve and just close?

25 THE COURT: How much time do you want?


54

1 MR. ZIMMERMAN: I would tell the Court 35 minutes but

2 I'm going to try to make it much shorter than that. I will be

3 as straightforward as possible. Of course, it depends on how

4 much Mr. Chartash and Mr. Sommerfeld sling my way.

5 MR. SOMMERFELD: Your Honor, I'm going to object.

6 It's the Defendant's burden here and I feel like the United

7 States is being sandbagged. If he wants to close and show how

8 he met his burden, I sit ready to respond to that. I feel I'm

9 going to respond and then be sandbagged with a rebuttal that I

10 won't be permitted to respond to. It's the Defendant's burden,

11 so if he wants to close, that's fine. If not, we're ready to

12 close and walk out and Your Honor can make a ruling.

13 THE COURT: Well, I'll hear closing arguments, both

14 sides one time. We don't have a jury here. You want to go

15 last, you want to go first, I'll hear from both sides, closing

16 arguments on the evidence in this case, and that's it because I

17 want to make a decision as quick as I can.

18 There's one case I think I want to revisit, I think I

19 did look at it before I was on medical leave and that would be

20 a case involving a four-prong test. What was the name of that

21 case?

22 MR. ZIMMERMAN: United States v. Buckles and Brehm.

23 MR. SOMMERFELD: We cited United States v. Brehm,

24 Your Honor, for that proposition. However, it's --

25 THE COURT: Write that down on a piece of paper


55

1 because I might want to look at that again. After I hear the

2 closing arguments, I just might want to review it again, the

3 case which set forth the four-prong test.

4 MR. SOMMERFELD: Your Honor, so I'm clear, do

5 you want --

6 THE COURT: By the Eleventh Circuit, the one

7 enunciated by the Eleventh Circuit.

8 MR. SOMMERFELD: The one that's cited in our brief,

9 Your Honor, and we rely upon, although there are many others

10 use the four-part test as well, is the United States v. Brehm.

11 THE COURT: Is that an Eleventh Circuit case?

12 MR. SOMMERFELD: It's an Eleventh Circuit case and it

13 is 442 F.3d --

14 THE COURT: Write it down.

15 MR. ZIMMERMAN: Judge, do you want my copy of it?

16 MR. SOMMERFELD: -- F.3d 1291 and I refer you to page

17 1298, it's Eleventh Circuit, 2006. I'll give you it to you.

18 Defense will give a copy.

19 THE COURT: Go ahead.

20 MR. SOMMERFELD: Whatever your pleasure, who do you

21 want to address you first?

22 THE COURT: Go ahead.

23 MR. SOMMERFELD: I'll address. Your Honor, as I

24 mentioned, this is unusual. It's unusual because it's the

25 Defendant's burden so I'm responding to no argument. I would


56

1 hope for the opportunity to give some sort of response. I

2 don't know what's coming and one of the reasons I don't know

3 what's coming is because the evidence is simply overwhelming in

4 this --

5 THE COURT: If I feel you need to respond, I'll let

6 you know. Let's do it that way. Let's go ahead.

7 MR. SOMMERFELD: I'm not going to take long. You've

8 read four briefs about this, this is our third hearing about

9 this. You've heard enough. And what it comes back to is

10 exactly what the United States put in our brief, which is

11 there's no legal justification for this.

12 It goes beyond that because if you look at the case

13 law, and we cite it thoroughly in our briefs, the controlling

14 case law and that of other circuits, if Defendant were

15 permitted to withdraw his plea here on the basis of what we've

16 heard, it would be a complete outlier, complete outlier.

17 There is no case I've seen and there is no case cited

18 by the Defendant where a defendant has been permitted to

19 withdraw his guilty plea essentially just claiming he lied

20 during his plea colloquy. And that's what he's saying: I lied

21 during my plea colloquy.

22 There's no case I've seen, the defense hasn't cited

23 any, where the defendant's been permitted to withdraw his

24 guilty plea because he'd been given a deadline to accept his

25 plea. That happens all the time in our courts. If we didn't


57

1 have deadlines I don't know if defendants would accept pleas.

2 There's no case I've seen where a defendant has been

3 permitted to withdraw his plea because the Government filed a

4 motion in limine. That, by the way, at the time this plea

5 hadn't even been ruled upon. We do motions in limine all the

6 time. Filing a motion in limine does not deprive anyone of the

7 right to fair trial. In fact, motions in limine ensure that

8 trials will be fair. They will be fair to the defendant and

9 fair to the people of the United States. That's why we file

10 them, and there's no case, and I defy the defense to provide a

11 case, where motion in limine provides grounds for a defendant

12 to later withdraw his plea.

13 And that doesn't even begin to get to the fact that

14 the Defendant didn't file for withdrawal of his guilty plea for

15 11-1/2 months after the guilty plea.

16 Each of those facts that he relies upon, and that's

17 really all he's relying upon, he's saying: I lied to you under

18 oath, Your Honor, I'm a perjurer, I lied, I stood before you

19 and when I said I wasn't pressured, I lied, the Government gave

20 me 72 hours to accept a plea, which we know is a stretch of the

21 truth.

22 The Government filed a motion in limine. Each of

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

2 and the time is too much because of the prejudice to the

3 Government.

4 We had to put up our case in one trial. We even got

5 a second jury. There's prejudice to the Government. There's

6 judicial resources. We already had two full juries.

7 He felt like there was a problem because of the

8 motion in limine, where was he? I can't do what Mr. Chartash

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

12 saw the Court's decision on the motion in limine by the end of

13 March. You ran right in at the end of March said: Ah-hah, I

14 win I have a defense, I want a trial? No, he doesn't.

15 He doesn't come in in March, he doesn't come in in

16 April, he doesn't come in in May, he doesn't come in June.

17 He knows another trial is coming up. Does he come in

18 and say I want my trial, Your Honor, I was pressured, I lied to

19 you, I have a defense, I asked for you to withdraw my plea?

20 Noh. He sits and he waits. Tangible prejudice to the

21 Government, Your Honor.

22 And let me say defense might say -- again I have to

23 kind of hypothesize here -- you know, he was doing all he

24 could.

25 Nonsense, Your Honor, nonsense. He met with the


59

1 United States twice, once in August and once in September.

2 What was he doing in April, May, June, July?

3 Now, the defense submitted an e-mail from May talking

4 about meeting with the United States but I'll urge you to look

5 at that exhibit. Actually, he's talking in that e-mail string

6 about meeting with his co-defendants and he would like the

7 United States to be present.

8 Regardless, he had every opportunity to file this

9 motion to withdraw his plea. He's prolific. He's written to

10 Your Honor before, we've gotten copies. Where's the letter in

11 April, May, June, July, August?

12 Okay, so now we're August. Now the trial's done

13 with. Where is he in September, October? If his counsel is

14 ineffective, how come Don Samuel is helping him file his

15 responses to the PSR in October? Eight months after the guilty

16 plea. Because he's not ineffective, he's doing a great job.

17 That's the Defendant's words, that was a great objection.

18 So, Your Honor, he sits and he waits. He waits

19 through two trials. He waits six months after the second trial

20 to file a motion to withdraw. And the cases say three months

21 is too long, five months is too long.

22 Your Honor, again, I have not found a single case,

23 and the defense has not cited a single case, where the

24 defendant has been permitted to withdraw his guilty plea 11-1/2

25 months following the guilty plea, much less one where there
60

1 have been two separate juries called and a full trial.

2 Now, I imagine the defense again is going to point to

3 Don Samuel's e-mail where Don advises him, you know, he asks is

4 this trial of the doctors, is that going to affect anything.

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

7 co-defendants' trial but you can't file it after your

8 defendants' trial. Don advises him as to the law, there's

9 nothing specific that prohibits it.

10 But, Your Honor, that's neither here nor here. The

11 issue is not excusable neglect. Nothing in Don's e-mail,

12 nothing in Mr. Samuel's e-mail changes the prejudice to the

13 Government and the waste of judicial resources because the

14 Defendant waited six months even after that e-mail to file his

15 motion to withdraw.

16 Now, you mentioned the Brehm standard and Brehm has

17 those four factors. I'm not going to walk through them. I'll

18 point this out.

19 The first place in our case where those four factors

20 appear is in Defendant's brief. Defendant filed a motion to

21 withdraw and he cited the four factors and he cited the Buckles

22 case. We filed a response that showed Defendant wins on none

23 of those four factors.

24 So it was a little surprising when we came in for our

25 first hearing and Defendant says, you know what, we don't have
61

1 to worry about those four factors because of the word "may."

2 "May" is sort of ambiguous, I think the language in Brehm is

3 clear but let's look beyond the language.

4 Every case I've seen in the Eleventh Circuit, in the

5 nineties, in the 2000s, cites the four factors, uses the four

6 factors, every single case.

7 Again, the defense has not cited a single case -- I'm

8 going to talk about the case they mentioned -- single case

9 where the Court says we're not using the four factors because

10 it says "may."

11 The defense cites the Brown case where the

12 formulation, the verbal formulation is the Court may consider

13 the four factors. In Brehm it actually says the Court may

14 consider the totality of the circumstances, we consider these

15 four factors regardless.

16 In Brown, the defense likes to point that out because

17 it says the Court may consider the four factors liberally

18 construed. But let's take a look at Brown.

19 In Brown a defendant comes back after pleading guilty

20 and says I didn't understand the charges against me at the time

21 of the plea. District court denies his motion to withdraw his

22 guilty plea, denies it without even a hearing. Eleventh

23 Circuit affirms. Affirms without a hearing, no hearing

24 necessary.

25 Brown is a case far, far from the idea that the Court
62

1 can rule on this without considering the four factors, that if

2 the four factors are against the Defendant, you know, you can

3 just rule and give him another trial anyway. The defense has

4 not provided a single case where a court says these four

5 factors are against the defendant but he gets a new trial

6 anyway, not happening.

7 So that's the framework. Every case in the past 20

8 years that I have seen has considered, even the case cited by

9 the Defendant, the Brown case, sets forth those four factors

10 and uses them as the framework. There's simply no question

11 that's the framework.

12 The Defendant -- yes, Your Honor?

13 THE COURT: I just wanted to also state that the

14 Defendant's motion to withdraw is twofold based on ineffective

15 assistance of counsel and whether or not there's a fair and

16 just reason for allowing him to withdraw his plea, just want to

17 state that.

18 MR. SOMMERFELD: And I'm happy to cover those. The

19 Defendant has provided no fair and just reason. I think the

20 ineffective was an attempt to provide a fair and just reason.

21 But regardless, the fair and just reason, the only reasons that

22 the Defendant has mentioned up here when asked is I was given a

23 72-hour deadline, and we can talk about that, the Government

24 filed a motion in limine, I lied during the hearing, and, oh,

25 by the way, the Court ended up ruling in my favor -- that's his


63

1 interpretation -- so the advice I got was wrong. And that's

2 how he makes his ineffective claim.

3 Your Honor, that's far from ineffective assistance of

4 counsel. We've talked about that and I trust you remember when

5 Don Samuel was on the stand.

6 The defense's claim that if a counsel gives advice

7 that later turns out to be wrong, that's ineffective assistance

8 of counsel, that's not the law. It's very clear that if it's

9 an unsettled issue of law, courts don't require counsel to be

10 clairvoyant.

11 Here we have what Don Samuel testified was an

12 unsettled issue of law. We went through that completely and he

13 gave his best opinion as to it. And you know what, Your Honor,

14 there's no showing that Don Samuel or Ed Garland told him he

15 didn't have that defense or he thought the Court would rule

16 against him. What they seemed to have said, if you look at the

17 testimony, is we don't know how the Court is going to rule, we

18 have put in our best arguments against it but you run the risk

19 of the Court ruling against you. As a strategic decision we

20 think it's best for you to plead.

21 But not only that, what we heard just a few minutes

22 ago from Mr. Garland, even before the Government's motion, one,

23 they considered the possibility and knew the Government would

24 probably file that motion; and, two, he was advising the

25 Defendant in November to take that plea. Why? There wasn't


64

1 only legal problems, there were factual problems.

2 For all the protestations of Defendant saying he

3 filed advice of counsel, Exhibit 4 from the Government, Arent

4 Fox, what he calls the greatest firm in the world on these

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.

10 Your Honor, there is no ineffective assistance of

11 counsel here. You heard it from Mr. Garland and Mr. Samuel,

12 there is no ignorance of a settled principle of law. They

13 looked at it and they gave their best evaluation, which was

14 we're not sure what the Court is going to do but you run a

15 risk. That's not ineffective assistance of counsel. Even if

16 they got it wrong it wouldn't be ineffective assistance of

17 counsel.

18 And that's why I believe we heard in Defendant's

19 second brief about ineffective assistance and we heard during

20 our first hearing, Your Honor, the issue is ineffective

21 assistance.

22 But after Mr. Samuel's testimony, there's no way the

23 record supported ineffective assistance of counsel. So then

24 defense comes back here at the second hearing and says, you

25 know what, we really don't have to prove ineffective assistance


65

1 of counsel.

2 One of the difficulties here is there's a moving

3 target. First the defense presents the four factors, then at

4 the first hearing walks away from the four factors. Then the

5 defense presents ineffective assistance of counsel, then the

6 defense walks away from ineffective assistance of counsel at

7 the second hearing.

8 Your Honor, in the defense's pleading the defense

9 says, quote, regarding the Defendant, "He indeed committed all

10 the acts that the Government alleges he did and accepts full

11 responsibility for those actions."

12 When Mr. Stoufflet takes the stand in the last

13 hearing and says I didn't do it, all that was a lie, I lied

14 before Your Honor and I gave evidence of my innocence to the

15 Court, and that was the whole point of calling Mr. Kuykendall.

16 He gave a binder of 37 drivers' licenses of people who were

17 rejected by the computer. That doesn't prove any innocence.

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.

21 So, Your Honor, the point is it's been a moving

22 target, which makes it very difficult, of course, to address.

23 But when you get back down to it, the factors talked about by

24 courts, the four factors, the ineffective assistance standard,

25 this is actually one of the easier cases. This would be an


66

1 outlier were it granted.

2 The Defendant talks a lot about the pressure and the

3 duress he felt. Your Honor, where the Government -- where the

4 Defendant doesn't claim that he lied under oath, because he

5 claims he lied under oath, we see here a pattern of

6 manipulating the truth. And I think that's seen here with the

7 72 hours.

8 The Defendant wants you to believe that the

9 Government drops a surprise motion in limine and then drops the

10 plea agreement with him and says 72 hours, you know, that's it.

11 I don't think there's even an ethical violation

12 there. We're a week before trial. Getting three days to plead

13 a week before trial isn't too bad. But, Your Honor, he wasn't

14 given three days. We know from the testimony of both Mr.

15 Samuel and Mr. Garland this was talked about for months. We

16 know from the Defendant's own letter he submitted in support of

17 his original motion, he references discussions about the plea

18 agreement in January and February of 2008. He was talking

19 about this with them for months.

20 I don't doubt -- I don't know that the filing of the

21 motion in limine by the Government crystallized for him the

22 risk. I'll take that as a given. But the fact is this was no

23 surprise plea agreement. Every essential term in this plea

24 agreement other than a forfeiture amount was negotiated

25 thoroughly and done by November and he talked about it with his


67

1 counsel for months. So this was no 72-hour surprise plea.

2 That's a manipulation and a stretch of the truth.

3 That was sort of the point that Mr. Chartash was

4 trying to make during his brief cross this morning. The

5 Defendant says I really want to meet with these guys. He's

6 telling Don Samuel I really want to meet with them, arrange

7 the meeting. He wants the meeting. He comes to the meeting,

8 Don Samuel comes to the first one, and then consents to him

9 going to the second one without counsel.

10 He's advised throughout, you don't want to do this,

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,

13 you shouldn't do this.

14 What does he turn around and do? He sends a letter

15 to the assistant attorney general accusing Mr. Chartash and

16 myself of unethical behavior. Why? Because we did what he

17 wanted and we met with him.

18 Now, again, I don't begrudge him sending any ethical

19 letter. He can send anything he wants, this isn't about that

20 personally, I don't care. What this is about is the Defendant

21 manipulating the truth.

22 Now, he says he was railroaded. I think that we

23 don't need to spend a whole lot of time on this. When Your

24 Honor asked him why he was railroaded he said because he was

25 given 72 hours to accept a plea and because of the motion in


68

1 limine.

2 Again, nothing wrong with filing a motion in limine,

3 nothing wrong with getting 72 hours to accept a plea, and he

4 was given plenty more time than that.

5 In fact, there's a case from the Seventh Circuit, the

6 Walker case, Your Honor, where a defendant ended up with a

7 20-year jail sentence after being given 35 minutes to accept a

8 plea. The jury was in the next room. He tried to withdraw his

9 plea afterwards. The district court denied it, upheld on

10 appeal, 35 minutes.

11 You know, I think we're going to hear about the

12 Defendant deserving a day in court and a right to trial. Every

13 defendant has a right to trial. This Defendant had the right

14 to trial but he made a decision. He made a strategic decision

15 and he was advised by his counsel, we heard about their advice,

16 he was advised by the Court, he was advised in the plea

17 agreement, you plead guilty, you give up your right to trial.

18 And that's really what this is about, do these guilty

19 pleas mean anything? Because if the Defendant under these

20 facts is permitted to withdraw his plea, we might as well not

21 have our half hour guilty plea hearings. If a defendant can

22 come back 11 months later and say you know what, Your Honor, I

23 lied during that, I want a trial now, why do we spend a half

24 hour going through the guilty plea colloquy? We wouldn't.

25 And that's why courts say if you come before a court


69

1 and you base your motion to withdraw your guilty plea on lying

2 to the district court during plea colloquy, you face a tough

3 road, you face a higher burden. We're going to hear about

4 liberally construed. Courts are very clear, and it's in our

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

7 lied, now I'm telling you the truth.

8 Plus, Defendant's actions really speak more than his

9 words here. He says he's been consistent throughout except for

10 that day. Your Honor, he's been consistent throughout in

11 waiting strategically to see what happened. He did not come to

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

14 and get the objections to the PSR eight months later.

15 That really puts the lie, I think, to his claim that

16 he is seeking a new trial because of the motion in limine. The

17 motion in limine was decided March of 2007. If that was the

18 reason why he wanted to withdraw his plea, where was he?

19 Thank you very much, Your Honor.

20 THE COURT: Thank you, Mr. Sommerfeld.

21 Mr. Zimmerman?

22 MR. ZIMMERMAN: Your Honor, this has been a long,

23 difficult case for my client, also for his counsel, who was

24 appointed, I believe last December. I was appointed to try to

25 undo what was already done.


70

1 And I apologize for maybe some of my client's actions

2 were not appropriate, sending letters to the Court, maybe

3 sending some letters to the Government. I would ask the Court

4 not to take that into account in your decision that you make.

5 And clearly my client and I have parted ways with

6 deciding how this case should be handled. But what we haven't

7 parted ways on is that he believes he made the wrong choice

8 under the wrong circumstances with the wrong advice.

9 This isn't a moving target. The motion that we

10 initially filed to withdraw the guilty plea did go through the

11 four factors. We need to show a fair and just reason, that the

12 totality of circumstances may be considered and the case law

13 says liberally construed for the defendant. We also alleged

14 ineffective assistance of counsel against Mr. Garland and Mr.

15 Samuel, specifically for what they failed to do, which was

16 analyze this case under an aiding and abetting theory.

17 Now, when we came in here we said, look, we just need

18 to show this Court a fair and just reason. It says "may,"

19 that's an outlying, the Court clearly -- there is Eleventh

20 Circuit law and clearly all those cases do say here's the

21 totality of the circumstances. So we're not denying the fact

22 that's there, that's clear it does say "may."

23 But even if that's the case, we could go through

24 those, and I will, I came in last time and said but we don't

25 have to, just to clear things up, we don't have to show


71

1 ineffectiveness necessarily to win the day. We can meet these

2 factors or we can show ineffectiveness for this one issue. So

3 it hasn't been a moving target. The Government and I have

4 spoken about this on, unfortunately, more than one occasion.

5 Mr. Stoufflet isn't here to curse the Government. I

6 mean, I understand where he's at mentally. But he did have

7 lawyers, both when he set up his company and then obviously he

8 had Mr. Garland and Mr. Samuel representing him.

9 The cases that I cited in my motion, United States v.

10 Buckles, United States v. Brown, which the Government cited,

11 United States v. Schubert, talk about those factors being

12 liberally construed.

13 The first issue is close assistance of counsel and

14 this kind of will tie into my ineffective assistance of counsel

15 argument.

16 This is not a case where Mr. Stoufflet stood on a

17 street corner or in a house and sold drugs personally. What he

18 did was run a website which contracted physicians and

19 pharmacies, and I'm not going to bore the court with the

20 details, I believe you know that.

21 There is no federal law or state law directly on

22 point about what made it a patient-physician relationship. Mr.

23 Samuel testified under oath had the doctors in this case met

24 with the patients and had a physical meeting, Mr. Stoufflet

25 would never have been prosecuted. That would have made it


72

1 legal. This isn't the typical 841 case that the Government

2 likes to bring against drug dealers, completely different. As

3 I said in my motion, I'll say it again, this is a hodgepodge of

4 state regulations coupled with 841. I believe Mr. Samuel

5 testified to it.

6 Mr. Samuel testified that when researching the law on

7 advice of counsel, he thought at one point of specific intent

8 and then he came to start to believe the Government's position,

9 that maybe it was a general intent crime.

10 But he admitted that he never looked at it from what

11 I stated before, that aiding and abetting point of view. And

12 why is it aiding and abetting? Because Mr. Stoufflet, he

13 didn't have the ability to write a prescription, he owned the

14 company which I just discussed, he never himself sold or

15 possessed those drugs.

16 So when you have aiding and abetting, and I've cited

17 some of the law in my motion, I'll cite it again, United States

18 v. Jackson, 526 F.2d 1236, it's a 1976 Fifth Circuit case, and,

19 Your Honor, I have copies for that -- for you. Basically

20 aiding and abetting, you have to have a conscious --

21 consciously agree with somebody else and have the same intent.

22 When you're an aider and abettor that increases that person's

23 intent, makes it -- goes from general to specific intent. And

24 Mr. Samuel agreed that he never looked at it from that point of

25 view. Now, he and I may disagree, and he does disagree that he


73

1 missed that, but that is what we believe and feel that he

2 missed.

3 The Government will always say, if they're going to

4 stand up and be allowed to rebut anything I say, that, well,

5 everyone's charged as an aider and abettor are in the

6 indictment. Well, the indictment puts someone on notice for

7 what they're charged with. So I can't help if the Government

8 put in his indictment that he's aiding and abetting a crime.

9 That's how a person is to understand how to defend the case.

10 And as aiding and abetting, there's a willfulness element to

11 it, person must be a willful participant in order to join the

12 act, the common design, or scheme or plan.

13 Another case I cited was United States v. Jenkins,

14 779 F.2d 606, it's an Eleventh Circuit case. In that case the

15 Government must prove beyond a reasonable doubt the defendant

16 had a deliberate, knowing, and specific intent to join the

17 conspiracy. He's charged as aider and abettor, which is

18 similar to conspiracy, that increases his intent.

19 Now, the Government cited in their brief, and I

20 argue, well, it was an Appendix decision, U.S. v. Green,

21 another case that said there's no willfulness element in 841.

22 Now, we can disagree. But, again, my argument to the

23 Court is he's an aider and abettor, therefore his intent is

24 different than everybody else involved in that case because

25 he's not the actual principal; he's aiding and abetting.


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1 I cited the case of U.S. v. Hernandez, Your Honor,

2 which was a case out of Southern District of Florida, and if

3 the Court wants me to find it, I thought -- it's up to the

4 Court, but I gave the case cite, very similar case where the

5 Court in that jurisdiction allowed the defendant, very similar

6 facts, to raise advice of counsel. After there's a mistrial

7 the Government came back and dismissed all the defendants,

8 including the people who pled guilty, because they had an

9 advice of counsel defense.

10 So I cited that because it was interesting because I

11 thought the Department of Justice was taking completely

12 opposite positions on basically the same exact case.

13 So when the critical moment of the case came to raise

14 advice of counsel, and Mr. Garland and Mr. Samuel testified

15 there was ongoing plea negotiations, what changed

16 Mr. Stoufflet's mind, and he testified to it, was when Mr.

17 Samuel and Mr. Garland said: You're out, you have no defense,

18 you can't raise advice of counsel, we believe the Government's

19 correct, let's not wait till the judge rules. That's what

20 induced him to plead guilty, was that wrong advice, and

21 significant, because he never wanted to plead guilty at all.

22 Mr. Garland just testified that he was reluctant.

23 Mr. Samuel read e-mails and testified that Mr. Stoufflet never

24 wanted to plead guilty, he was very reluctant. And had Mr.

25 Samuel had -- could go back in time, he would have just said


75

1 let's go to trial because it's obvious that Mr. Stoufflet

2 wanted that trial.

3 So the critical moment Mr. Samuel, as much as I

4 regard him as a great lawyer -- and you know what? Great

5 lawyers do make mistakes and those mistakes sometimes affect

6 the people they represent and that's what happened here.

7 So for close assistance of counsel, and again it ties

8 to the ineffectiveness, I don't think it could be said that he

9 had close assistance of counsel when it came to the critical

10 question in the case. And you know what, Your Honor? The

11 Court ruled eventually that the Government is wrong, that there

12 is specific intent and there is a willfulness requirement.

13 That was your ruling.

14 Now, the Government is going to argue, well, that was

15 for Dr. Smith, that had nothing to do with Mr. Stoufflet. It's

16 clear in the caption of your order and it doesn't change what

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

20 Government now wants to argue, well, it was a novel issue so

21 now Mr. Samuel can't be -- said he gave the wrong advice

22 because now he knows the Court ruled against them.

23 The other part of the equation -- and these are parts

24 of equation. Totality of the circumstances is -- not just one

25 factor is more important than the other, the Court can just
76

1 look at it and decide, you know, what stands out here.

2 Mr. Stoufflet alleges that this wasn't voluntary, and I guess

3 he says that Mr. Garland pressured him.

4 I think Mr. Stoufflet feels that he was under a great

5 deal of stress. He had this business he ran. It was all taken

6 away from him based on things that he believed he did

7 appropriately and based on lawyers' advice, his corporate

8 lawyers, these healthcare lawyers, these law firms, these

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.

12 So when the moment came he was under a lot of heavy

13 stress. He felt that he was told again that he didn't have a

14 defense and he had nowhere to turn and so he pled guilty. And

15 that's what his thinking at the time was, was that it wasn't

16 voluntary, that he felt like he had no choice but to enter a

17 guilty plea and he very reluctantly did that.

18 I have tried to tell this Court, I did in my motion,

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

21 guess, the fact that he was satisfied with his counsel.

22 What the Government alleges basically was true, that

23 he did do these things, but he had a defense to it because he

24 relied on his lawyers. So maybe some of the things the

25 Government said may be questionably false. I tended to agree


77

1 that everything that was stated was the truth but Mr. Stoufflet

2 had a defense. So when he stood up here and testified to the

3 Court he was being truthful, that he was pleading guilty and he

4 admitted the facts as presented to the Court. Mr. Garland

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

7 and, you know, consciously agree with the doctors to commit

8 this crime.

9 So what's a knowing and voluntary plea -- and someone

10 in Mr. Stoufflet's position is under a great deal of stress, I

11 mean an inordinate amount of pressure, that in and of itself

12 can make it involuntary. He testified he felt very pressured

13 into pleading guilty. And I know Mr. Samuel and Mr. Garland

14 are going to disagree with that.

15 Now, the Government's going to argue about judicial

16 resources and these resources being wasted. Now, he had

17 private counsel at the outset so there's no money that was

18 wasted there. The Government's investigation has been finished

19 for a long time. Mr. Stoufflet's ability to have a jury trial

20 shouldn't be based on the fact that the Government is all of a

21 sudden going to be out some money. Our Government's known to

22 spend a lot of money on a lot of wasteful things.

23 Mr. Stoufflet having a jury trial is not wasteful.

24 He's saying to the Court, look, I want to withdraw my

25 guilty plea, let's go to trial next week, I'm ready to go,


78

1 let's do this.

2 He's the one who's -- literally his neck is hanging

3 out there because his plea agreement has a certain cap in it.

4 That is gone. He told this Court he's willing to go to prison

5 for the next 25 to 30 years and that's what he's risking. The

6 ultimate risk, the ultimate cost -- that's why these judicial

7 resources is inconsequential. The risk weighs to

8 Mr. Christopher Stoufflet. He's putting his life out there,

9 his life on the line to go forward and say: Prosecute me, I

10 want to have a trial, I want the Government to prove their

11 case, let's do it.

12 When the system was founded a couple hundred years

13 ago, the question of these resources by the Government

14 prosecuting somebody never came into play. This is his liberty

15 that we're talking about. I understand he pled guilty. I

16 understand the Government's argument if you let him withdraw,

17 then everybody else should be allowed to withdraw. Well, this

18 is a very unique situation in this case.

19 The Government's argued prejudice is another part of

20 the factor. Now, in this type of case there's no fading

21 memories of witnesses, there's no long-lost eyewitnesses. This

22 is mostly -- I mean, this isn't a whodunit. This is mostly

23 some testimony by some lawyers, by the agent, who, obviously, I

24 mean, he was testifying to some statistics and numbers very

25 well, hasn't forgotten anything about this case. This is


79

1 pretty much a document type of case. There's no missing

2 witnesses. If any witnesses are missing, it's going to be on

3 behalf of Mr. Stoufflet, who may have trouble getting lawyers

4 who have left law firms and have gone on to other places to

5 come testify at his behalf. So if there's any delay, I guess,

6 you know, it would hurt Mr. Stoufflet more than anything.

7 And I want the Court to understand that the delay

8 isn't 11-1/2 months. I was appointed, I guess sometime in

9 December, and for me to get acquainted with some of the case

10 took me a few months. I asked the Court for a continuance a

11 couple of times because this is an enormous case and I had no

12 idea what I was getting myself into. And so I needed some time

13 to ferret out some arguments and try to think it through and

14 determine what we had here.

15 And in addition to the delay, Mr. Stoufflet was never

16 told he ever had a right to withdraw his guilty plea. We stood

17 up here before the Court to plead guilty, the Court told him he

18 didn't have a right to withdraw the plea, he didn't have a

19 right to an appeal.

20 Don Samuel testified to the Court that Mr. Stoufflet

21 knew he wanted to do something but he didn't know what it was.

22 He wanted to have a trial. He was never told about anything to

23 withdraw a plea. I believe that e-mail would reflect, and Mr.

24 Samuel testified, until, I think, August 2008, Mr. Samuel and

25 Mr. Garland were still his lawyers. They were working


80

1 alongside him. Neither one of them ever said, Chris, you can

2 file a motion to withdraw your plea, not until August of '08.

3 So I understand the Government's argument it's late,

4 but it's not necessarily the way it should be looked at, that

5 there's this huge delay. The delay is sort of induced by Mr.

6 Samuel, who wrote to him in an e-mail -- when Mr. Stoufflet was

7 concerned that he was going to miss out on his opportunity to,

8 what he says, tell the truth, I take to mean have a trial, he

9 wrote an e-mail to Don Samuel, is this going to affect me. Mr.

10 Samuel wrote back the doctors going to trial is not going to

11 affect your ability to withdraw your plea.

12 That's when these magic words came up and then he

13 decided that he must do something. But Don Samuel kind of

14 induced him to even delay it even longer, it's not going to

15 affect you. Again, Chris Stoufflet is relying on his lawyers.

16 What else is he supposed to do?

17 You're right, I don't have an Eleventh Circuit case

18 that says a long delay is not prejudice to the Government. But

19 it's not the actual months that the Court needs to look at, if

20 you read those cases closely, like U.S. v. Brehm.

21 U.S. v. Brehm was a case where the Government

22 negotiated a plea with the defendant and in negotiating they

23 stopped investigating the case early on. And then when the

24 defendant decided I want to withdraw the plea, Government said,

25 wait a minute, we stopped our investigation of the crime


81

1 because you agreed to plead guilty. That was the prejudice to

2 the Government, because they stopped their investigation. It's

3 not just because there's a delay, it's not the months that

4 count; it's what the Government loses during those months.

5 In Chris Stoufflet's case they haven't lost anything

6 at all in the months that have gone by by waiting for this

7 hearing to occur. There is no evidence from the agent, I know

8 the burden is on me, but the agent didn't testify that he

9 didn't know anything or had no recollection of a lot of these

10 issues in the case. To the contrary, they still know

11 everything. There's former testimony from transcripts. This

12 case has been tried, the Court heard it. No one -- there's no

13 disappearing witnesses. So it's not the delay; it's what

14 happens during that delay, what is the Government losing out

15 on?

16 So I think, Your Honor, that we can show a fair and

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

19 wrong choice by pleading guilty when he should have had a

20 trial.

21 Again, it's not a high burden, it's just a fair and

22 just reason should be liberally construed to the defendant and

23 you can analyze it through those four factors. Actually

24 through the three factors. You can turn to prejudice later on

25 after we meet the three.


82

1 But he gave you a lot of reasons. He wants to have a

2 jury trial. What's more fair and just than that? He felt that

3 he was railroaded. That's his word and I think what he means

4 is he felt that everything came crumbling down on him all at

5 once after he hired all of these attorneys before he was

6 indicted and then all of a sudden he's indicted.

7 I mean, if those lawyers told him to keep operating

8 that business and it wasn't a problem, aren't those lawyers

9 co-conspirators of him also? I mean it's just -- it smells

10 real bad, this whole case, all around for everybody, especially

11 for Mr. Stoufflet.

12 You know, the Government's concerned about the

13 ethical -- the criticalness of Mr. Stoufflet's statements, but

14 he's the one who's being prosecuted and he's the one who's

15 looking at a significant amount of time in prison.

16 As far as ineffectiveness, Your Honor, I've cited the

17 law in my motions. Again, I think I was able to kind of breeze

18 through it here in my summation. I think the Court understands

19 that issue is the critical issue on whether advice of counsel

20 can be raised.

21 Christopher Stoufflet spent the bulk of his life

22 trying to do right, building a company and doing the right

23 thing. He invests his employees, he did what anybody in our

24 country would love to do, is being an entrepreneur, and he did

25 it. And he contacted the right lawyers to get the information


83

1 he needed. The Government wants to characterize it he was

2 buying advice. He wasn't buying advice. He contacts the top

3 lawyers in the country, Mr. Garland said that. Those lawyers

4 have an ethical duty to tell him what's right and what's wrong.

5 There's no such thing as buying advice. Well, there may be but

6 they wouldn't be working at those top law firms. That's not

7 where he would go for the top advice. Mr. Samuel made it clear

8 that this wasn't just a fly-by-night law firm that he went to

9 speak to. These were the top firms in the country.

10 So he followed the advice and at the time of him

11 building this company, the laws were not clear. The laws

12 weren't clear. I cited in one of my -- in my initial motion

13 that it wasn't until 2008 till the Ryan Haight law was passed

14 about online pharmacies being illegal.

15 This was very, very gray area law and he ends up

16 being indicted. So he's only trying to rectify this injustice.

17 And I know he made the decision to plead guilty and that falls

18 on his shoulders. It was just a bad decision that day based on

19 a lot of different aggravating factors going on all around. It

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

22 there's a lot of reasons he's provided as to why he should be

23 allowed to withdraw.

24 Basically his life has become a tragedy. Here he was

25 at the highest of highs, working on a high level, doing what he


84

1 believed to be the right thing in running a business, and the

2 Government just cuts him to his knees and indicts him, while

3 he's listening to his lawyers telling him it's okay.

4 If the Government wants to talk about what effect a

5 guilty -- withdrawing a guilty plea would have here, what about

6 what effect that relying on your lawyers is not viable anymore?

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?

10 I think, Your Honor, it's clear and I think

11 Mr. Stoufflet should be allowed to withdraw his plea. Thank

12 you.

13 THE COURT: Thank you. We are going to take a

14 20-minute break, after which I am going to enter a decision in

15 this case. Thank you.

16 (Recess, 3:27 p.m. to 3:54 p.m.)

17 THE COURT: Thank you, please be seated. Let the

18 record reflect the following.

19 The Court having conducted an evidentiary hearing on

20 the Defendant's motion to withdraw his guilty plea; and the

21 Court having weighed and considered the Defendant's legal

22 argument that he should be allowed to withdraw his guilty plea

23 because of ineffective assistance of counsel; and the Court

24 having also weighed and considered whether there is a fair and

25 just reason for allowing the Defendant to withdraw his guilty


85

1 plea; and the Court having weighed and considered the testimony

2 of both the Defendant and his former attorneys, Don Samuel and

3 Ed Garland, regarding the Defendant's motion to withdraw his

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

6 Court having read and considered all of the exhibits tendered

7 into evidence by both the Defendant and the Government; and the

8 Court having read and considered in advance of this hearing the

9 briefs submitted by the parties in support of and in opposition

10 to the motion; and the Court having weighed and considered the

11 totality of the circumstances surrounding the Defendant's

12 guilty plea and the advice he received from counsel prior to

13 entering his plea of guilty; and the Court having weighed,

14 considered, and applied the four-prong test enunciated by the

15 Eleventh Circuit Court of Appeals in the case of the United

16 States of America v. Robert Brehm; and the Court having weighed

17 and considered the merits and demerits of the respective

18 positions taken by both the Government and the Defendant; and

19 the Court having reviewed and considered certain pertinent

20 aspects of the Defendant's plea transcript which relate to

21 matters at issue in this case; and the Court having read and

22 considered the plea agreement the Defendant entered into with

23 the Government; and the Court having applied the law applicable

24 thereto, including the cases relied upon and cited by counsel,

25 as well as the law governing the credibility of the witnesses


86

1 and the weight to be given their testimony; and the Court

2 having given little weight and credit to the testimony of the

3 Defendant; and the Court having given considerable weight and

4 credit to the testimony of attorneys Ed Garland and Don Samuel;

5 and the Court having heard oral argument of counsel, the Court

6 hereby finds in favor of the Government and against the

7 Defendant because the Defendant has failed to show by a

8 preponderance of the evidence under either standard that his

9 attorneys were ineffective or that there was a just and fair

10 reason for allowing him to withdraw his guilty plea.

11 The Court hereby instructs counsel for the Government

12 to prepare a proposed order for the Court's signature that

13 reflects findings of facts and conclusions of law consistent

14 with the Court's ruling. Said proposed findings of facts and

15 conclusions of law are to be reviewed by counsel for the

16 Defendant prior to their submission to the Court to ensure the

17 accuracy of the facts recited therein.

18 Mr. Chartash, when will you and Mr. Sommerfeld be

19 able to submit proposed findings and facts and conclusions of

20 law consistent with the Court's ruling?

21 MR. CHARTASH: Three weeks, Your Honor?

22 THE COURT: Okay. I want you to allow counsel for

23 the Defendant to review those only as to the accuracy of the

24 facts on which you rely.

25 MR. CHARTASH: Yes, Your Honor.


87

1 THE COURT: If there's any disagreement, then I want

2 you all to submit separate proposed findings of facts and

3 conclusions of law consistent with this Court's ruling.

4 MR. CHARTASH: Yes, Your Honor.

5 THE COURT: With that we'll be in recess. Good day

6 and thank you.

7 (Proceedings concluded at 4:00 p.m.)

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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 87, are a true and correct copy of the proceedings in the case

8 aforesaid.

9 This the 13th day of October, 2009.

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Amanda Lohnaas
12
Amanda Lohnaas, CCR-B-580, RMR, CRR
13 Official Court Reporter
United States District Court
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