PROSECUTORIAL MISCONDUCT

1) DEGREE OF LAWYERS INVOLVEMENT

The government knows the extent lawyers were involved in offenses. The
lawyers did more than provide “legal advice.” The lawyers provided the legal
infrastructure for every transaction. The lawyers engaged in transactional work
that, by definition, involved far more than providing legal advice or making
legal arguments: they structured the “alleged illegal” transactions.

It is understood that the government has discretionary authority when

selecting persons for criminal sanctions. The record needs to reflect that the
lawyers met the qualifications necessary as “criminal accomplices” and are
culpable according to the law 1 but immune from prosecution.

 Devaluing the lawyer’s involvement to such a diminished capacity

allowed the government a platform to exclude my “advice of counsel”
defense.

There is a vast amount of direct evidence of the lawyer’s involvement but the
government has fought to keep it out of Court and “covered-up.” I believe the
motive for the governments omissions of the lawyers can be directly linked to
their inability to “prove beyond a reasonable doubt” and “sustain a conviction”
on the premise that crimes were being committed for a 2 ½ year period under
the guidance and direction of many lawyers.

The government admitted during RECENT proceedings that I provided them

evidence of the lawyers involvement:

09/23/2009: SA Bob Kuykendall questioned by Stoufflet defense counsel

Zimmerman:
KUYKENDALL: “Well, the truth, the focus of the truth was that, if I may

1
See, e.g., MPC § 2.06(3) (“A person is an accomplice of another person in the commission of an offense if: (a) with
the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit
it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (iii) having a legal duty
to prevent the commission of the offense, fails to make proper effort to do so; or (b) his conduct is expressly
declared by law to establish his complicity.”); N.Y. Penal Law § 115 (substantive offense of criminal facilitation
when the actor believes that it is “probable” that his actions will aid the principal).

Page 1 of 20
 paraphrase and I'll go back if you would like me to be more specific, but
because he showed us copies of documents related to the lawyers'
involvement, specifically primarily it was the contracts, the fact that the
lawyers helped write and rewrite and draft the contracts, his point was the
lawyers were therefore very intimately involved in the process, they had
knowledge, he hired the lawyers to help him do the right thing, et cetera”.

A recent chain of events unveils the extent the lawyers were involved in my
business.

Excerpts from discussions with former defense counsel Zimmerman and

Samuel regarding the depths of the lawyer’s involvement is revealed:

10/24/2008: ZIMMERMAN TO STOUFFLET: 2

“I am not part of that crime as you well know.”

In turn, I inform Mr. Samuel about Mr. Zimmerman’s withdrawal and discuss with
him the lawyers involvement in which he states:

10/26/2009: ATTORNEY DON SAMUEL STATED:

“ I agree with you that the "dangerou" or "red flags" letter may have
"been insufficient, as a matter of legal advice. But it does show,
unequivocally, I think, that they knew exactly what your company did
and continued to bill you every hour, knowing what you were doing. I
have always thought this was a very strong point on your side. After all,
if they thought what you were doing was flat-out illegal, they would not
be allowed to continue to bill you on an hourly basis, in the same way
that a lawyer cannot provide legal services to a heroin or cocaine
distribution business on an ongoing basis. The fact that they continued
to bill you shows that, at least to some extent, they viewed you as being
involved in a legitimate business, even if it was somewhat "dangerous"
(or whatever you want to call it)”.

10/27/2009: ATTORNEY DON SAMUEL STATED:

2
Mr. Zimmerman separates himself from the other lawyers by his statement he was “not part of that crimes.”
These discussions he distances himself from the other lawyers and which directly result to Mr. Zimmerman’s
decision to withdraw as counsel.

Page 2 of 20
 “I understand your point yesterday that the lawyers were, for all
practical purposes “in on it” in the sense that they profited from your
business, knowing exactly what you were doing.”

Had the extent of the lawyer’s involvement been disclosed early on, the
Government would not have had the ability to legitimately to assert the claims
in Government’s Motion to Exclude “Advice-of-Counsel” [Doc. 217].

“Thus, the government moves to exclude any evidence or argument

pertaining to a defense that defendants erroneously believed their
conduct was legal.”

“Thus, defendants' beliefs concerning the legality or the propriety of

internet prescribing of controlled substances is not a proper defense,
and evidence of their good faiths beliefs, through the advice of
counsel, mistake of law, or any other rubric, is irrelevant to the
charges and should be excluded.”

This importance of this issue is intensified because the Government position

asserted in Motion 217 is the trigger point in which the guilty plea is obtained.

These new statements regarding the lawyer’s involvement profoundly affect

the entire case. The lawyers involvement has been misrepresented and the
Court is unaware of the depths of their involvement and for that reason, and
therefore must be presented to the Court.

2) CONCEALED & SUPPRESSED EVIDENCE

(A) LEGAL INVOICES
These invoices provides a detailed account of the lawyers’ involvement.
They also demonstrate that the lawyers had full knowledge of my business
and knew exactly what I was doing every minute I conducted the business.
These invoices confirm that the lawyers played a significant role in the very
offenses which I am being held accountable for.

Most importantly, these legal invoices and contracts provide direct

evidence that Stoufflet disclosed all issues with the lawyers and that they
had full knowledge of everything. This key material evidence unequivocally

Page 3 of 20
 eliminates and disproves the governments “case-in-chief” Conspiracy
theory.

ELEVENTH CIRCUIT:
“In determining whether the record is sufficient to demonstrate the
existence of a conspiracy, this Court considers: (1) whether a common goal
existed; (2) the nature of the underlying scheme; and (3) the overlap of
participants. Id. “Separate transactions are not necessarily separate
conspiracies, so long as the conspirators act in concert to further a common
goal.” United States v. Chandler, 388 F.3d 796, 811 (11th Cir. 2004) (citation
omitted).”

(B) “LEGAL CONTRACTS” 3

These agreements, drafted and consistently updated by the lawyers,
defined the scope of the “alleged criminal” acts and provided the “linkage”
or “nexus” of the willing participants.

KEY ELEMENTS OF THE CONTRACTS

1) Reveals the participants and provides the “linkage” or “nexus” in
the alleged offenses. Therefore, the government need not
speculate who participated in the alleged crimes.

The government’s failure to be forthcoming is evident in the

indictment, as it fails to include “clear and concise” account of the
facts. The omission of mandatory “essential elements” amounts
to a fabricated story presented in favor of the government. This
version is presented, as a “True Bill.” Ironically, the omissions are
numerous, extremely significant in purpose and favorable to my
defense. Drafting an indictment by strategically selecting issues
favorable to the government and excluding key facts favorable to
the defendant is apparent.

3
Legal Contracts provide direct evidence : “To determine a defendant’s accountability for the conduct of others, a
district court “must first determine the scope of the criminal activity the particular defendant agreed to jointly
undertake” and then consider the “conduct of others that was both in furtherance of, and reasonably foreseeable in
connection with, the criminal activity jointly undertaken by the defendant.” Id. In determining the scope of the
criminal activity, the district court may consider “any explicit agreement or implicit agreement fairly inferred from
the conduct of the defendant and others.”

Page 4 of 20
 In this case, these legal contracts furnish the participants who
participated in the acts the government has deemed illegal. The
government’s decision to provided a version, void “essential
participants” falls short as “factual.”

2) Confirms licensed U.S. pharmacies “distributed and dispensed”

the “controlled substances,” contradicting the indictment. The
evidence and the facts prove pharmacies “distributed and
dispensed” the “controlled substances.” Interestingly, the
government makes no mention of pharmacies, avoiding the
pharmacies involvement at all times, incorrectly recasting the
“distributing and dispensing” of the “controlled substances” on
the “the defendant’s” (doctors and myself). At no time did the
doctors or myself, possess, distribute or dispense any controlled
substances. The government is well aware of this fact and the
evidence shows the “controlled substances” were distributed
from the manufacture, to wholesaler, to the pharmacy who
fulfilled prescription and shipped the “controlled substances” to
the consumer. These entities are all licensed by the DOJ DEA and
it was everyone’s belief they were in compliance with the law.

To greater distort the facts; the government categorizes the

pharmacies as “hearsay evidence.” (see Bill of Particulars Doc.
181)

The facts prove beyond any doubt the pharmacies were “part of
the same course of conduct or common scheme or plan” who
“aided, abetted, counseled, commanded, induced, procured, or
willfully caused in furtherance of the jointly undertaken criminal
activity”

The pharmacies meet the qualifications necessary as “criminal

accomplices” and are culpable according to the law.

3) Set for the role of each participant and their responsibility.

Page 5 of 20
 4) Provides the “specific intent” of the participant. (Specific intent
and general intent becomes a critical issue in this case.)

The “lawyers” and the “pharmacies” are “inextricably intertwined”

in every transaction and “necessary to complete the story.” The
government’s exclusions of these key participants cannot translate
into a “factual basis” needed to sustain a conviction.

(C) CONCEALED INDEPENDENT FINANCIAL INVESTIGATION: performed by

Forensic Accountant and former IRS Agent Ted Robertson found no wrongdoing4

(D) CONCEALED INDEPENDENT 3RD PARTY CPA FIRM:

(Verner, CPA) Firm Structured and managed all of Stoufflet's financial and tax
reporting. no evidence of any wrongdoing.

The government is not at liberty to conceal such critical evidence. A factual

basis cannot be formed by a depiction of events, less untangled participants.5
It was the government’s decision to deviate from the rules by concealing this
key evidence and present this case minus these essential elements. This
decision has substantially unfairly prejudiced this case.

To date the Court is unaware of these critical facts and therefore it must
immediately be brought to the Court’s attention..

3) FAILURE TO PROVIDE A FACTUAL BASIS 6

Throughout the proceedings fails to mention the lawyers and the pharmacies
involvement. Their intentionally omission of necessary participants in the
allegations cannot form a factual basis.

4
The government had multiple meetings with Roebrtson and my CPA’s and found no wrongdoing. Robertson met
with William Bruton on (03/04/2004). Mr. Bruton and Jerry Culver; Financial Crimes Consultants met with CPA’s
and uncovered no attempt to conceal or hide funds. (see invoices)
5
9-27.750 Disclosing Factual Material to Defense “(A) The attorney for the government should disclose to defense
counsel, reasonably in advance of the sentencing hearing, any factual material not reflected in the presentence
investigation report that he/she intends to bring to the attention of the court.
6
UNITED STATES ATTORNEYS MANUAL Title 9 221 Sufficiency [Federal Rules Criminal Procedure Rule 7(c)(1),]
provides: “The indictment or the information shall be a plain, concise and definite written statement of the
essential facts constituting the offense charged [E]very element of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be prepared to meet, and, in the case any other proceedings
are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a
former acquittal or conviction.“

Page 6 of 20
 The Federal Rules of Criminal Procedure and the United States Attorney’s
Manual (USAM) require a “factual basis” for the following:

1. INDICTMENT
2. GUILTY PLEA
3. SENTENCING

The government’s failure to provide a “clear and concise” account of the

events and the “essential elements” of the crimes do not meet the
standard to form a “factual basis.”7

4) DISMISSING THE PHARMACIES AS HEARSAY EVIDENCE

As explained above, the pharmacies were “inextricably intertwined” with the
charged offenses and “necessary to complete the story” due to their
involvement IN EVERY transaction.

According to the Federal Rule of Evidence the pharmacies do not qualify as

“hearsay evidence.” 8

5) DISCOVERY VIOLATIONS
07/2007: The government requested early disclosure of my “advice-of-
counsel” defense materials. Following the advice of my attorneys, I waived the
attorney-client-privilege and released all my information to the government.

7
Fed. R. Crim. P. 7(c)(1)
“The indictment and information must contain sufficient detail to adequately apprise the defendant of the nature
of the charges against him. The drafter must afford the defendant not only a document that contains all of the
elements of the offense, whether or not such elements appear in the statute, but one that is sufficiently descriptive
to permit the defendant to prepare a defense, and to invoke the double jeopardy provision of the Fifth Amendment,
if appropriate.”
9-27.430 Selecting Plea Agreement Charges
“(A)(2) That has an adequate factual basis;” “(B)(2) The attorney for the government should also bear in mind the
legal requirement that there be a factual basis for the charge or charges to which a guilty plea is entered”
9-27.720 Establishing Factual Basis for Sentence
“(A)(3) Make a factual presentation to the court” “(B)(2) Not only must the prosecutor be satisfied that the report is
factually accurate, he or she must also pay attention to the initial determination of the base offense level.”
8
1) Federal Rule of Evidence 801 (d) (2) (E) 11
(d) Statements which are not hearsay.--A statement is not hearsay if--2) Admission by party-opponent.--The
statement is offered against a party and is (E) a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to
establish the declarant's authority under subdivision.

Page 7 of 20
 For approximately four months, the government took advantage of this
unregulated process, analyzing all of my evidence. It was only after giving
themselves this unfair advantage that they declared my evidence was legally
unavailable to me.

6) COMPROMISING STOUFFLET’S ABILITY TO PRESENT EVIDENCE

Ten days prior to trial, the government declared (see Doc. 217) Government
knows or should have known that I qualified to assert the “advice-of-counsel”
defense :
Prerequisites: Before taking any action with regard to the alleged offense:
(A) he fully disclosed all relevant facts to an independent attorney,
(B) whom he considered competent,
(C) the attorney offered a legal opinion or rendered legal advice on the
legality of a proposed transaction,
(D) the defendant relied in good faith on this opinion or advice in
determining a course of action.

The facts confirm I met these necessary requirements allowing me to

legally assert an “advice-of-counsel” defense. But here again the failure to
disclose the depths of the lawyer’s involvement presents serious
consequences for me. Had the facts been disclosed that that the lawyers
not only provided advice but the lawyers structured and were engaged in
the facilitation of every transaction, my ability to assert this defense would
not have been an issue.

7) THE GOVERNMENTS USE OF STOUFFLET’S EVIDENCE IN THEIR BEST INTEREST

After declaring the “good-faith” legal advice was irrelevant and not an
available defense to me in Doc. 217, the government conveniently utilized this
same evidence; “legal contracts” to their advantage during the trial of my co-
defendant, Dr. Smith.
(see numerous references to the “legal contracts” in trial transcripts Docs. 281-
2, doc. 281-3, doc. 281-4)

To date there has been no mention to the government’s misuse of this

evidence and accepted as “fundamentally fair.”

Page 8 of 20
8) OFFENSES DOWNGRADED TO MISDEMEANORS
In 2008, the government conceded that the codefendant doctors had only
engaged in acts of a misdemeanor nature. Yet the government still insists that
I somehow engaged in federal drug dealing without the doctors and remains
persistent in seeking harsh punishment for me.

MARCH 4 2008: GUILTY PLEA PROCEEDINGS

STOUFFLET’S ATTORNEY ED GARLAND STATED IN FEDERAL COURT:
“That is, he is guilty if he aided in or agreed with people to have these drugs
sold over the Internet by doctors doing these prescriptions.”
[Document 12 Page 29 ]

The chart below is taken from the indictment and clearly demonstrates
government’s classification of the “crimes.” The acts of the doctors and
Stoufflet are “inextricably intertwined.” Every Motion following the
indictment reveals the government’s classification of Stoufflet and the
doctors culpable for violating the same crime. In fact, the indictment states
Stoufflet “aided and abetted” the doctors. The government’s decision to
change legal theories at a later date in which Stoufflet crimes are “felonies”
and the doctors crimes are “misdemeanors,” presents new challenges.
An explanation of how Stoufflet’s “aiding and abetting” in misdemeanors
offenses constitute felony’s offenses.

COUNTS 2 - 4

CONTROLLED SUBSTANCE
COUNT DEFENDANTS DATE
DISTRIBUTED AND DISPENSED
Received 30 doses of Phentermine
Christopher Stoufflet,
37.5 mg, prescribed by SMITH, M.D.
2 Troy Sobert, 09/16/2003
Andre D. smith, M.D. dispensed to
Andre Smith, MD
R.A.K. Atlanta, GA
Received 30 doses of Phentermine
Christopher Stoufflet,
37.5 mg, prescribed by SMITH, M.D.
3 Troy Sobert, 10/01/2003
Andre D. smith, M.D. dispensed to
Valdimr Andreis, MD
K.A. Atlanta, GA
Received 30 doses of Adipex 37.5
Christopher Stoufflet,
mg, prescribed by SMITH, M.D.
4 Troy Sobert, 10/17/2003
Andre D. smith, M.D. dispensed to
Andre Smith, MD
R.A.K. Atlanta, GA

Page 9 of 20
The government at a later date changes legal theories that changes the crimes of
the doctors to an “misdemeanors” nature and Stoufflet’s remain felonies.
Justification as to how Stoufflet’s “aiding and abetting” in misdemeanors offenses
constitute felony’s for his offenses is needed.

9) INTENTIONAL MISREPRESENTING OF FACTS

The governments entire case is based upon “half-truths” and misleading
information. As revealed here, the governments numerous allegations of the
legal advice I received was based on the following excerpt, taken out of
context.
(June 5th 2002 letter from the law firm of Arent Fox to eScripts general counsel
Hewitt & Traub)
“this letter is in follow-up to our most recent telephone conversation
on wednesday, may 22nd, and serves to summarize the status of the
many projects we are undertaking on behalf of our mutual client e-
scripts-md.com, l.l.c. (hereinafter "e-scripts" or the "company"), as
well as to brief you on our conversation with buddy parker. In light of
the recent events involving e-scripts, we felt it important to reiterate,
so there is no misunderstanding of our position, that there is a very
real risk of enforcement action, up to and including criminal
sanctions, against the company and its principals for past and current
on-line prescribing practices. Moreover, we believe that if e-scripts
continues to operate its on-line prescribing services in its current
manner, the risk of an enforcement action increases.”

KEY ISSUES THE GOVERNMENT FAILS TO STATE:

 The letter is addressed to eScripts general counsel, Hewitt & Traub and
c/c to Buddy Parker; not me.

 The phone call with Buddy Parker entailed specific directions from
Parker to Arent Fox that instructs Arent Fox to pass all matters through
him for final approval.

Page 10 of 20
  After sending this letter, Arent Fox continues providing legal services.
Contrary to “risking criminal sanctions” Arent Fox remains involvement
increases providing mechanisms that greater enhance the compliance of
the business.

 At no time did Arent Fox was any attempt made to discourage the
continuing of the business.

 Arent Fox was providing “clear and unmistakable” advice.

EXAMPLE: Arent Fox advised that we discontinue conducting business in
Nevada. Upon receiving this instruction, we immediately complied.

 At no time did they readdress this risk issue, as one would except if it
posed any danger.

 Arent Fox did not withdraw and continue their involvement.

Lawyers are required to withdraw if significant risks are posed, but the
fact that Arent Fox becomes more active in the business over the next
13 months is instrumental in my belief we were not doing anything
illegal.

10) TACTICS TO EDUCE INVOLUNTARY GUILTY PLEA 9

The government knows I had no intentions on pleading guilty so they simply
barred me from using the “advice-of-counsel” defense. They waited ten days
before trial to declare this argument and in doing so, set in motion a trap for
an unconscionable plea agreement which I was forced to enter before the

9
GUILTY PLEAS USAM: 9-27.440 Plea Agreements When Defendant Denies Guilt
“The attorney for the government should not, except with the approval of the Assistant Attorney General with
supervisory responsibility over the subject matter, enter into a plea agreement if the defendant maintains his/her
innocence with respect to the charge or charges to which he/she offers to plead guilty. In a case in which the
defendant tenders a plea of guilty but denies committing the offense to which he/she offers to plead guilty, the
attorney for the government should make an offer of proof of all facts known to the government to support the
conclusion that the defendant is in fact guilty.”
“Involvement by attorneys for the government in the inducement of guilty pleas by defendants who protest their
innocence may create an appearance of prosecutorial overreaching. As one court put it, "the public might well not
understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of
pleading guilty and going to jail." See United States v. Bednarski, 445 F.2d 364, 366 (1st Cir. 1971). Consequently, it
is preferable to have a jury resolve the factual and legal dispute between the government and the defendant,
rather than have government attorneys encourage defendants to plead guilty under circumstances that the public
might regard as questionable or unfair.”

Page 11 of 20
 judge would even rule on the issue…….the very same plea agreement I refused
to enter into for the previous 19 months.

The day after the government barred my “case-in-chief” defense (Friday,

02/29/2008) I was given approximately 72 hours to plead guilty due to a
deadline the government set to remove the plea. (Monday, 03/03/2008)

It is no coincidence that two business days after the government changed legal
positions 17 by entering their Motion in Limine, barring Stoufflet from relying
on the legal advice he received, that Stoufflet “all-of-a sudden” decided he was
guilty and wished to proceed to Court to plead guilty.

KEY FACTORS NOT PRESENTED TO THE COURT

a) I refused numerous opportunities to plead guilty with previous
counsel [Parker]
b) I spent remaining funds on new counsel, “trial experts” [Garland and
Samuel] when I had Parker already retained
c) I spent 19 months preparing for trial
d) I consistently refused to plead guilty for 19 months (turning down
that very same agreement I was forced into)
e) I chose to face 292-365 months of incarceration rather than plead
guilty for 19 months
f) Within weeks of entering the plea, I inquired about issues relating to
the exclusion of the advice of counsel defense to Don Samuel
g) I had no knowledge there was a provision to seek withdrawal of a
Guilty Plea until May of 2008 (when researching my case)
h) When I inquired to both Samuel & Zimmerman about I didn’t want
the amount of time that had passed to effect my ability to withdraw
they both confirmed that was not an issue

11) CONTINUING DUTY TO DISCLOSE

Prosecutors disregard their continuing duty to disclose evidence favorable to
the accused. At this time, the government has no creditable witnesses to
support their claims and has made no effort to disclose the events which
support this issue.

Page 12 of 20
 The government has claimed its star witness against me is my former lifelong
friend and business partner, codefendant Sobert. Sobert had maintained his
innocence for approx 15 months after being criminally charged. Due to
immense pressure, he pled guilty in late 2007.

In April 2008, Sobert testified for the government at the trial of codefendant,
Dr. Andre Smith. Mr. Sobert’s testimony contradicts the government’s case
and presents serious conflicts of his guilty plea.

12) REPETITIVE USE FALSE STATEMENTS

The government had consistently asserted the following false statement:

“No one associated with the defendants checked the accuracy of the information
customers provided, including their identities, ages, and qualifying medical
conditions, such as weight.”

The fact’s reveal that I had an entire department dedicated to verifying

customer information. Thousands of verifications performed and I provided
case agent Kuykendall evidence of this in September 2008. From that point
forward, the government knowingly continued to assert false information.
[example: see Stoufflet PSR]

On 09/23/2009 FDA agent Kuykendall admitted in Court that Stoufflet had

provided a book of “customer verifications.” To date, the government has
failed to make any corrections to the false allegations.

13) PROSECUTORS DISMANTLING OF THE LAW

The prosecutors ability to utilize specific parts of the law strongly indicate
another manipulation attempt to fit their theory of prosecution.

The Controlled Substance Act, Section 1306.4 describes the “purpose of issues
of prescription.”10 This statue describes the responsibility of the prescribing
10
Section 1306.04 Purpose of issue of prescription. “(a) A prescription for a controlled substance to be effective
must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his
professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon
the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.
An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate
and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C.
829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be
subject to the penalties provided for violations of the provisions of law relating to controlled substances.

Page 13 of 20
 practitioner and the pharmacist. The law clearly states “the person knowingly
filling such a purported prescription, as well as the person issuing it, shall be
subject to the penalties”

I was informed by numerous pharmacies that they were passing unannounced

inspections by the State Pharmacy Boards and the DEA. There is sufficient
reason to believe the pharmacies compliance contradicts and creates many
problems in the government’s case. The pharmacies were licensed by the DOJ
DEA. The conflicting positions by the U.S. Attorney’s Office and the DEA is
apparent.

14) MERITLESS MOTION SEEKING DETENTION

Two days after I informed the court of the government’s conduct, the
government attempted to detain me. This was done by fabricating a story and
misrepresenting the facts, again.

The government alleged that I was a flight-risk and my behavior was erratic.
The so-called erratic behavior was taken completely out of context. It was
based upon my former defense attorney, Lawrence Zimmerman’s statement
pertaining to the “lawyers involvement in the offenses as criminal,” and his
confirming he was “not part of those crimes.” Realizing his culpability in these
crimes, he withdrew as counsel.

The government solution simply ignores the lawyers culpability in the crimes
and seeks wrongful detention.

15) U.S. ATTORNEY’S OFFICE FOR THE NORTHERN DISTRICT OF GEORGIA’S

PREVIOUS POSITION AND KNOWLEDGE OF MY ACTIVITIES
The U.S. Attorney’s Office for the Northern District of Georgia’s current theory
of prosecution is inconsistent with the previous position taken by former lead
prosecutor, AUSA Ms. Sandy Stropolli.

The U.S. Attorney’s Office for the Northern District of Georgia under AUSA
Stropolli had full knowledge of what I was doing and made no objection at any
time, thus allowing me to continue operating my business for an additional 2 ½
years. Ms. Stropolli and Judge Scofield also knew of our customer verification
process. In December 2003, I voluntarily closed the business.

Page 14 of 20
 From the time I closed the business until the time I was criminally charged, no
law passed outlawing the services my company performed. However, the
indictment alleges that I was illegally operating during those 2 ½ years.
Furthermore, there was no attempt made to inform me that your office had
taken a different position.

Your office was well aware that I had spent millions of dollars, engaging what I
thought was the very best lawyers so my business remained compliant, but no
effort at all was made to warn any of those lawyers . Your office also knew my
willingness to comply with the law due to the fact that I had personally
contacted the Department of Justice on two occasions and the DEA several
times in an effort to comply. Yet, not one phone call, not one letter, or email
was sent to provide me any notice or any chance to comply. I respectfully ask
that someone interview AUSA Stropolli about this issue.

16) WITHHOLDING EXCULPATORY EVIDENCE

Prosecutors have committed serious violations of Brady and Giglio against me
and my co-defendants and to date these issues remain undisclosed.
(see enclosed Brady Violations and Suppressed Evidence Chart)

Verification of Customer Information: The Government has emphasized

throughout the proceedings that customers could order “controlled
substances” without any verification being performed.

The indictment and throughout the proceedings the government has

maintained:
“No one associated with the defendants checked the accuracy of the
information customers provided, including their identities, ages, and
qualifying medical conditions, such as weight.”

The prosecutors’ intentional false misrepresentations are repeated in the

Criminal Indictment, numerous MOTIONS, the PSR, and in open court during
the trial of co‐defendant Dr. Smith. Stoufflet met with AUSA Sommerfeld and
Chartash and presented them evidence that customer information was being
verified.

Page 15 of 20
 August 4, 2008: during an in person meeting with AUSA
Sommerfeld and AUSA Chartash, Stoufflet informed them about the
customer verification policies, procedures and that it was a vital
important part of everyday business.

 August 20, 2008: Stoufflet sent an email to his attorney, Don Samuel to
forward to prosecutors that provided proof of the verifications.

 September 9, 2008: Stoufflet exchanges emails with AUSA Sommerfeld

and AUSA Chartash and discussed the customer’s verification issues
again.

 September 19, 2008: Stoufflet meet with AUSA Sommerfeld, Chartash,

and FDA Special Agent Robert Kuykendall and presented a large amount
of evidence of customer verifications.

 October 20, 2008: Having proof of this new information, the

Government submitted objections to the Pre‐sentence Report and
yet failed to make any corrections to the incorrect information regarding
the customer verification.

 September 23, 2009: Testimony of FDA SA Bob Kuykendall admits to

the customer verifications:
A. Well, towards the end of the meeting he also talked about
things that he did or that e-Scripts did, I guess, at his
direction to assure that they were taking accurate information
from customers ordering drugs online.
Q. Was he asked to provide --
A. He was.
Q. -- of that? And did he provide documentation of that?
A. On the subsequent meeting in September he did.
Q. So in September he provided documentation of that?
A. He did.
Q. What did he provide?
A. Well, there were other things that he was asked that he
provided but it was based on our previous conversation as --
well, to directly answer your question, he provided us a binder

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 that showed copies of drivers' licenses of patients -- of
customers. There were approximately 37.

The evidence proves were thousands of verifications, not just 37. Stoufflet
informed the government of this prior to the closure of the co-defendants
cases yet to date, the government has made no attempt to correct their
flagrant misuse of false statements.

Interviews of Stoufflet employees would reveal verifications due to the

common knowledge of this task that was performed on a daily basis.

17) BREACHING ATTORNEY-CLIENT PRIVILEGE

Lead prosecutor Chartash contacted eScripts general counsel, Darren Traub, to
obtain privileged information on April 26, 2007.

The government was aware that a Joint Defense Agreement existed, and to
date remains active as no parities withdrew as mandated in the agreement.

18) WILLFUL DECEIT AND UNTRUTHFULNESS

The government has failed to take any action to correct the deficient repeated
misrepresentations. (see PSR) Submitted corrections were implemented but
the PSR miserably falls short from factual. (see Don Samuels additions)
a. “Doctor/Patient” communications: The Governments state throughout the
proceedings that the doctors had no contact with the patients. This is false
because I had employed physicians extra to promptly respond to customer
questions via email and phone.
b. Changing of company names: The indictment incorrectly states: By on or
about March 1, 2003 the Defendants moved offices and renamed the
company Virtual Wellness Networks.
This is FALSE: the company was not renamed, Virtual Wellness Networks,
INC was a new entity created in the development and growth of the
business.

19) MISUSE OF “LAW” AND “POLICY”

The governments repeated misuse of “medical board policies” as “state law”
strongly suggest it is intentional.

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 The government claim that the State Law referred to in the indictment was
only an illustrative tool. But the government’s repetitive reference of a
“policy” as “law” becomes abusive. Presented in this manner the
government’s misleading statement alleges law violations when in fact no law
existed. Medical board polices regulate licensed doctors only. That loophole
provided the ability to consolidate the allegations under the “Controlled
Substance Act” which carry harsh punishment for offenders. As a result, the
government’s massive confusion becomes evident during jury deliberations
that resulted in a mistrial against Dr. Smith.

The disdain for citizens of this country exhibited in such a wasteful manner by
prosecutors is appalling and should be made public.

20) MEETING WITH STOUFFLET WITHOUT COUNSEL

I was not aware I had to request the Court terminate my defense counsel. I
thought I had terminated defense counsel Don Samuel and Ed Garland and I
informed AUSA Sommerfeld and Chartash of this. After meeting with me,
without counsel present, AUSA Sommerfeld and Chartash informed me that
until the Court Docket reflected otherwise, Garland and Samuel remained
counsel.
Both AUSA Sommerfeld and U.S. Attorney Nahmias strongly advised me to
remain with said counsel.

21) BINDING LEGAL CONTRACTS

Government has failed to disclose that they provided false information and
entered into binding legal agreements to obtain the “controlled substance” for
the indictment.

22) ENACTMENT OF NEW LAW PRESENTS LEGAL CHALLENGES

10/15/2008: Congress amended the very statues used in the prosecution of
this case. This law “outlaws” the conduct I am accused of violating. There is
good reason to believe that prior to the enactment of this law, the conduct
was legal, or the law was so unclear, Congress had to amended it.

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 Government’s Ominbus Response Motion11 [03/14/2007]
“Had Congress believed at any time in the nearly 30 years since the
Supreme Court decided Moore that the Supreme Court’s interpretation was
incorrect, it could have amended the CSA or demanded additional
regulations be promulgated as it did with regard to the treatment of
narcotics addicts”.

06/24/2008: JOSEPH RANNAZZISI, DEPUTY ASSISTANT ADMINISTRATOR,

DEA OFFICE OF DIVERSION CONTROL
“that the current laws were adopted in the 70’s & 80’s, without the
internet in mind, so rules, regs and laws for “online pharmacies” need
to be clearly defined.”

“The current laws used to police and web, are ambiguous and
ineffective, so even lawmakers are demanding clarity.”

“Under current law, however, these Internet facilitation centers are

not required to register with DEA. And the Controlled Substances Act
did not take into account the technological advances that have taken
place since the CSA was established”

“establishment of what a valid doctor‐patient relationship is, what a

valid prescription is. That's very important; puts everybody on notice
that this is what is expected.”

GROUNDS TO RECONSIDER “VOID FOR VAGUENESS”

Contradicting positions from the Department of Justice. The DEA and the
U.S. Attorney’s Office present opposing positions. How can the public be
held accountable if those enforcing the laws are not clear on the law?

23) DETERMINING PROSECUTIONS

UNITED STATES ATTORNEYS MANUAL (USAM) PROTOCOL
In determining whether prosecution should be declined because no substantial
Federal interest would be served by prosecution, the attorney for the
government should weigh all relevant considerations, including:

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1. Federal law enforcement priorities;
2. The nature and seriousness of the offense:
(Stoufflet closed the business2 ½ years prior to being charged)
3. The deterrent effect of prosecution;
(Stoufflet voluntarily closed the business)
4. The person's culpability in connection with the offense;
(Stoufflet acted on the advice of his lawyers at all times)
5. The person's history with respect to criminal activity;
(Stoufflet has one felony over twenty years ago)
6. The person's willingness to cooperate in the investigation or prosecution
of others; and
(Stoufflet initiated contact with the FDA, DEA, USDOJ, specifically inquiring
about the legality of his business on several occasions)
7. The probable sentence or other consequences if the person is convicted.

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