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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA, )))

-vs- ) Indictment No. 1:08-CR-82-CC )

CHRISTOPHER STOUFFLET, ) Defendant. )

Transcript of the Motion to Withdraw Guilty Plea ProceedingsBefore the Honorable Clarence Cooper

September 23, 2009 Atlanta, Georgia

APPEARANCES OF COUNSEL: On behalf of the Government: Randy S. Chartash,

Assistant United States AttorneyLawrence R. Sommerfeld,Assistant United States Attorney

On behalf of the Defendant: Lawrence J. Zimmerman, Esq.

Amanda Lohnaas, RMR, CRROfficial Court ReporterUnited States District CourtAtlanta, Georgia(404) 215-1546

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INDEXWitnesses for the Defense:

Christopher StouffletCross-Examination, Continued 4Redirect Examination 13

Witnesses for the Government: Edward T.M. Garland

Direct Examination 17Cross-Examination 33Redirect Examination 37

Robert KuykendallDirect Examination 40 Cross-Examination 50

Argument by the Government 55Argument by the Defense 69Ruling by the Court 84

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(Wednesday, September 23, 2009, 1:35 p.m.) THE COURT: Thank you, please be seated. We are

ready to resume. Mr. Stoufflet, had he finished? MR. ZIMMERMAN: The Government still had him on

cross-examination. THE COURT: Okay. MR. ZIMMERMAN: Mr. Chartash said he would only be

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

give Your Honor a preview of what we anticipate the remainder of the day to be is, and to conclude today, most assuredly, is brief additional cross-examination, obviously redirect, however long that will be. We then, and if that's the only witness,

and we understand from Mr. Zimmerman, we understand that is the only additional witness that defense will call, we have two brief witnesses, Mr. Garland and the special agent, Robert Kuykendall, who will testify to brief points. And then we hope short argument, brief arguments about it, Your Honor.

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

you're under the oath you took initially, okay? THE WITNESS: Yes, sir. THE COURT: Thank you. Mr. Chartash, you may resume your cross-examination. MR. CHARTASH: Thank you, Your Honor.

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CROSS-EXAMINATION (Continued)BY MR. CHARTASH:

Q. Mr. Stoufflet, in your direct testimony the other day you went through a sequence of events related to your efforts to meet with Mr. Sommerfeld and myself. Do you remember that? A. Yes, sir. Q. And in fact, Mr. Stoufflet, you stated that you longed, longed for the day that you could meet with Mr. Sommerfeld and

myself, correct? A. Yes, sir. Q. You were so anxious to meet with us that you were willing to meet with us without your attorney being present, correct? A. Yes, sir. Q. And you were so anxious to meet with us that indeed your

father came to meet with Mr. Sommerfeld and myself requesting a meeting on your behalf? A. Yes, sir. Q. We, that is Mr. Sommerfeld and myself, couldn't meet with you without your attorney present, or at least an acknowledgment that he didn't want to be present, correct?

A. I'm not sure that's exactly how it went as far as he didn't want to be present, but I understood that supposedly I took a risk by meeting with -- actually, I think the other day you called it stupid of me to meet with you guys. Q. Yes, indeed, and I'll do that again today.

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A. Well, I mean, you know, I don't see how stupid it is to meet with somebody to discuss the truth.

Q. And we already went through the handling the truth issue once before. But let's do this, my point is just this, is that we couldn't meet with you without the approval of your attorney of record, so we sought his approval. Do you remember that? A. I'm not sure you sought his approval. I did meet with you without my attorney present. I don't know what --

Q. And that was agreeable to you, you didn't want your attorney present, in fact? A. I was fine meeting with you, Mr. Sommerfeld or Mr. Kuykendall without an attorney present. Q. Without your attorney present, right? A. That's correct.

Q. That was agreeable to you? A. Yes, sir. Q. That was okay with you? A. Yes, sir. Q. And if I showed you an e-mail where Mr. Samuel said that was okay with him, would that refresh your recollection?

A. If it's in an e-mail, it's fine. Q. Well, here, let me just show you in --

MR. CHARTASH: What exhibit are we up to? MR. SOMMERFELD: 8.

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

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

A. I think it's more to this e-mail than just that. Q. It's a longer e-mail thread, is what you're saying? A. Yes. There's probably some other relevant information that's not here so we might want to include that. Q. I'll be happy to do but essentially it says that -- he's, your attorney, Don Samuel, okay with you meeting with --

A. Yeah, that's what it says. I don't know what the rules are but that's what the e-mail says, yes, sir.

MR. CHARTASH: Your Honor, Government moves Government's Exhibit 8 into evidence.

THE COURT: Have you seen it? MR. ZIMMERMAN: My client is actually right, I object

to -- the rule of completeness is my objection, Your Honor. There's obviously a string of e-mails.

THE COURT: What's the exhibit? MR. CHARTASH: I'm sorry, Your Honor? THE COURT: What is it? MR. CHARTASH: This is just an e-mail from him, there

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

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

MR. CHARTASH: From Don Samuel to Larry Sommerfeld

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and myself saying: "I have no objection to Chris meeting with Agent Kuykendall to furnish documents, answer any questions" --

MR. ZIMMERMAN: Judge, I just object. The Government wants to read you what the e-mail is.

THE COURT: Does he know of this e-mail? MR. CHARTASH: Your Honor, I believe he said he

recognized it but believes it's part of a longer e-mail string or thread, as it's called.

THE WITNESS: I'm sure it's part of a longer e-mail string that says much more than that, Your Honor.

THE COURT: Did you receive anything other than what you have?

MR. CHARTASH: There may be other things, long ones. We've received many, many e-mails.

THE COURT: I'm going to exclude it, then, if there's a possibility.

MR. CHARTASH: Okay, that's fine. THE COURT: Excluded. MR. CHARTASH: Okay.

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

before, is that we in fact did meet with you? That is Mr. Sommerfeld, Mr. Kuykendall, myself, Special Agent Kuykendall, met with you a couple of times, correct? A. Yes, sir. Q. Once with your attorney and once without your attorney,

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right? A. Yes, sir.

Q. And that was okay with you? Yes or no? A. Yes. Q. Okay. And just for the record, we had mentioned that we can't advise you, but told you our opinion was that it was foolish for you to meet with us without your attorney, correct? That is, Mr. Sommerfeld and myself, correct?

A. Yes, something along those -- something -- you cautioned against me meeting with you without my attorney present. And I said, once again, there's nothing to hide so I didn't see the harm in meeting with you guys. I think also -- may I elaborate a little bit more?

THE COURT: You stated that since it was about the

truth you were willing to go ahead without your attorney. I think that's the gist of it.

THE WITNESS: Okay. THE COURT: Anything else you might want to say you

might want to confer with your lawyer, he might want to cover it on recross. But just answer his questions, okay?

Go ahead, Mr. Chartash. MR. CHARTASH: Thank you, Your Honor.

Q. (By Mr. Chartash) So after you meet with us, we do not take the action that you want us to take, correct? A. No. You do not disclose new evidence that was presented

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to the Court that's relevant to the case. Q. Right, and we're going to go through that --

A. Good. Q. -- as well with Mr. Kuykendall. So after we don't do what you want to do, you then file a complaint against Mr. Sommerfeld and myself to the acting assistant attorney general, Ms. Rita Glavin, do you remember that? A. Uh-huh.

Q. And as one of the points of your complaint, and I think you refer to it as --

THE COURT: That was filed with someone in main justice?

MR. CHARTASH: Yes, Your Honor. This is acting assistant attorney general, Department of Justice in the

Criminal Division, Your Honor. THE COURT: Thank you.

Q. (By Mr. Chartash) You complain about Mr. Sommerfeld and myself. And one of your complaints is that you told -- let me just read it, you told prosecutors and Mr. Nahmias that I should remain with said counsel, meaning Mr. Samuel, and they,

meaning the prosecutors, exchanged e-mails with me and met with me without counsel being present. Right, remember that? A. Yes, sir. Q. Nowhere did you disclose in your complaint to us that you had agreed to it, right?

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A. Once again, there's more chain of e-mails to get the whole story and, if I'm allowed, I'll be happy to present that, that

I disclosed that and then you guys allowed me to meet with you. And then after the fact you said that you shouldn't have done -- basically alluding to you shouldn't have done that because I should -- my attorney should have been present, something along those lines. Q. After the fact? No, we told you that up front, didn't we?

A. It's in writing, whatever I have. Q. Right, we told you that up -- A. Instead of arguing with you about it can I present that to you in writing?

THE COURT: Wait. Go ahead. Q. (By Mr. Chartash) Yeah, you told us -- we told you you

ought not, it's not prudent, in our opinion, for you to meet with us without your attorney being present, up front in the beginning, correct? A. Like I said, there's much more to it than that -- Q. Just listen to my question -- A. You're trying to ask me -- if I don't have it in front of

me, I don't feel comfortable answering that question unless the facts are in front of me. Q. That's fine. A. If you only present part of the facts that's not really fair.

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Q. Let me show you what's been marked as Government's Exhibit 9.

MR. ZIMMERMAN: Your Honor, while he's doing that, I would just impose an objection. I'm not sure of the relevance of all this.

THE COURT: I don't know, let me find out. We don't have a jury, let me find out what he's doing. I don't know.

MR. ZIMMERMAN: I wanted to speed things up.

THE COURT: I don't want to act prematurely, let me find out.

MR. CHARTASH: This is towards the end of it. Q. (By Mr. Chartash) Let me show you what's been marked as Government's Exhibit 9 and ask if you can identify it? A. Yes, the letter, uh-huh.

Q. This is a letter that you sent with an attachment to the acting assistant attorney general, correct? A. Correct. Q. This is the entire letter, right? A. I'm not sure it's the -- Q. Take a look.

A. No, I think I included some exhibits, probably, possibly. I need to pull my files. Q. Well, look at the exhibit. There's no exhibits that I see that are mentioned. This is the letter.

THE COURT: Does the letter reflect that exhibits

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were enclosed with the letter? THE WITNESS: My file, I don't have and I don't

recall and -- THE COURT: I said the letter, look at the letter.

Is that the letter you wrote? THE WITNESS: Yes, sir, it is. THE COURT: Does that reflect exhibits were enclosed

with the letter, like you have enclosures?

THE WITNESS: Honestly, I wrote so many letters, Your Honor, I don't know. I probably enclosed some exhibits.

THE COURT: Are you going to tender that into evidence?

MR. CHARTASH: Yes, Your Honor. Government's Exhibit tenders Government's Exhibit 9 into evidence.

THE COURT: I'm going to let it in over the objection. Q. (By Mr. Chartash) And the page that I was referring to, the part that I was referring to was page 6 of 7. Do you want to look at that, please? And it's the middle -- well, the first bullet point on that page.

A. Uh-huh. Q. And, again, there's nothing in there where it says that you agreed or consented to meet with us without your attorney, is there? A. There's nothing here, no, right.

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Q. Right, and nothing in the letter that says that either; isn't that right?

A. (No verbal response.)MR. CHARTASH: Okay, no further questions. THE WITNESS: I do have the e-mails that --

Q. (By Mr. Chartash) I'm just asking you about the letter; I'm not asking you about another e-mail.

THE WITNESS: I'm just trying to --

THE COURT: I told you, you respond. Okay, thank you, Mr. Chartash.

Mr. Zimmerman? MR. ZIMMERMAN: Very briefly.

REDIRECT EXAMINATIONBY MR. ZIMMERMAN:

Q. Mr. Stoufflet, the Government asked you a line of questions, I just want to focus on a couple.

Number one, Mr. Chartash referred to your wanting to withdraw your guilty plea just because you want to air your grievances and tell the Court how much money you spent. Why do you want your plea withdrawn?

THE COURT: What was the question again? Q. (By Mr. Zimmerman) Why do you want to withdraw your guilty plea? A. Because I always insisted on having a fair -- I was told I would have a fair trial. And, once again, that didn't happen.

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I always insisted on it. I always wanted that. I prepared for it and at the last minute when they filed those motions and,

like I said, removed that defense from me, I -- I've worked nonstop to try to rectify these matters and have a fair trial.

Mr. Chartash's comments the other day about admit, whatever, I think I have every right to sit up here and make it very explicit about how much effort, belief, and if you want to say how much money I spent on lawyers, relying on lawyers,

disclosing everything to the lawyers and following all the advice at all times, meeting all the requirements necessary to assert an advice of counsel defense, as I know now, and that not -- and that being removed from me, I have a lot of -- I have a lot of trouble understanding how that was possibly done to me and done in the manner it was done.

Q. So let me just speed this along for the Court. So what you're saying is you want a trial because you believe you have a viable defense? A. I have a viable defense and it's all in written format, it's all documented. Everything that I've done is documented in the legal invoices from the law firms that could be

referenced and the all the advice that was given that's referenced in those legal invoices, I followed. Whether this crime is classified as an 841, whatever, but I think I qualify to rely on the legal advice I received in good faith and following good faith.

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Q. And are you of the opinion that Mr. Samuel gave you the improper advice to plead guilty? Is that what you're saying?

A. Yes. They created a circumstance for me out of the clear blue, because all along it was -- I was -- even the Government's position was I was going to be able to assert an advice of counsel defense. That was my only defense, I had no other defense. I wouldn't even have gotten in this business if I didn't have no lawyers to rely on and for them to remove that

the last minute, and Don Samuel, in an e-mail, he states that him and Ed, authored it was going to create the impossibility of me asserting that advice, which -- Q. I'm not really sure what that means, but so you're of the opinion that when Mr. Samuel and Mr. Garland told you that you couldn't raise an advice of counsel defense, that they were

wrong; that's what you're stating? A. To me, but I'm not the lawyer here. But, I mean, I was never told -- Q. Chris, let me ask you to answer my questions and if the Court wants you to elaborate, Judge Cooper will ask you to. A. Okay.

MR. ZIMMERMAN: May I have a little leeway just to lead him along since it's redirect?

MR. CHARTASH: No, no. THE COURT: Check with counsel. He may -- MR. CHARTASH: Your Honor, that's not the rule.

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THE COURT: Okay, no, go ahead. Don't lead him. You don't have to lead him.

MR. ZIMMERMAN: Okay. Q. (By Mr. Zimmerman) You testified that you had all this advice, right? A. Yes. Q. From the lawyers you hired for your business. So ultimately, again, succinctly, like the Court asked you, why

did you then all of a sudden plead guilty? A. I didn't have no option at that time. Q. What do you mean by that? A. I was given no option. When the Government filed the motion and put the 72-hour deadline, if they -- once again, I felt I didn't have a chance, an opportunity to -- my -- I

wasn't willing to go to trial facing 292 months to 365 months in prison. Okay? I was -- that was -- the day before they filed that motion I was willing to take those chances. And when they filed that motion and declared it as a matter of law and removed that ability from me, I felt defenseless. And that's what Don Samuel and them --

Q. Did your lawyers tell you you were defenseless at that point? A. Did they tell me I was defenseless? Q. Yes. A. Yeah, they said you don't have a defense.

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MR. ZIMMERMAN: Okay. Nothing further. THE COURT: Mr. Chartash, anything on recross?

MR. CHARTASH: No, Your Honor, nothing further. THE COURT: Thank you, Mr. Stoufflet, you may step

down. Mr. Zimmerman, call your next witness. MR. ZIMMERMAN: Your Honor, we don't have any more

witnesses.

THE COURT: Thank you. Are there any witnesses to be called by the Government? Two?

MR. SOMMERFELD: Two, correct, and we'll try to keep them as brief as possible.

And, of course, Your Honor, these are really response witnesses. It's the Defendant's burden, the only witnesses so

far have been defense witnesses. The United States calls Ed Garland to the stand. THE COURT: Thank you, Mr. Garland, please come

forward. Please step up, face me, and raise your right hand. EDWARD T.M. GARLAND,

being first duly sworn or affirmed, was examined and testified

as follows: THE COURT: Please be seated. Make yourself

comfortable. Please state your full name for the record. THE WITNESS: Edward T.M. Garland. THE COURT: Thank you, Mr. Garland.

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Mr. Sommerfeld, your witness. MR. SOMMERFELD: Thank you, Your Honor.

DIRECT EXAMINATIONBY MR. SOMMERFELD: Q. Good afternoon, Mr. Garland. A. Good afternoon. Q. First of all, where do you work? What's your occupation? A. I'm a lawyer, work here in Atlanta, in Buckhead is my

office. Q. Tell us about your practice. What kind of lawyer are you? A. I'm generally a trial lawyer with heavy emphasis on criminal defense, personal injury work, things of that nature. Q. How long have you been a trial lawyer? A. Well, let's see, since November of 1964.

Q. Has your practice included criminal defense since then? A. Extensively. Q. Do you want to tell us a few of your more notable clients?

MR. ZIMMERMAN: Your Honor, I think we'll stipulate to Mr Garland's reputation.

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

reputation, there's no need to go into that. Q. (By Mr. Sommerfeld) Handled how many guilty pleas? Uncountable number of guilty pleas? A. It would be very hard to say but in the general practice of criminal law, approximately 80 to 85 percent of all your

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cases you have result in guilty pleas. So I've been involved in several thousand, I would say.

Q. In federal court, in the Northern District of Georgia as well, right? A. Had many cases in the Northern District of Georgia since I began practicing. Q. Also handled any number of trials, right? A. I have had a number of trials in front of many different

judges in this court. Q. Including recently you've handled trials in this court? A. Yes, I have. Q. There's a point when you started representing the Defendant in this case, correct? A. That's correct.

Q. And that was before even the indictment came out; is that correct? A. That's correct. Q. And Defendant has talked a lot about being given 72 hours to accept a plea. Is it fair to say plea negotiations or a possible plea resolution of the case began even prior to the

indictment in this case? A. I'm a little vague on my memory on that but my approach almost always is to determine what the alternative is that we are facing in a case and one of the alternatives is what the Government will do if a plea is worked out.

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It's not to say that that is the direction we would take, but we always want to know what the option is and have

discussions about what the Government's point of view is, what the charge would be, what the recommendation would be, things of that nature. But I'm not able to recall exactly when it started for us to try to determine whether or not the option of a plea is one we should pursue. Q. Well, let me show you this just to put some sort of bound

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

submitted in conjunction with the United States' Response to Defendant's Motion to Withdraw Guilty Plea.

THE COURT: Thank you. Q. (By Mr. Sommerfeld) Do you recognize that?

A. Yes. Q. Is that a letter that you received in June 2007? A. Yes. Q. And did it include a copy of a guilty plea for your consideration? A. Yes.

Q. So at least as far as June 2007 there was at least a structure of a guilty plea that was starting to be discussed; is that fair? A. A dialogue about what it would contain. And I always feel that in that process if the Government will put it all in

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writing it gives us something specifically to analyze. Q. But certainly nothing was agreed on in June 2007, right?

A. That's correct. I always want to know what the options are. Q. Absolutely. Let me bring your attention to November 2007. Do you remember plea discussions that were ongoing through November 2007, October and November? A. Yes.

Q. Now, were plea agreements being exchanged then? A. Yes. Q. Do you recall, regarding the plea agreements in October, November 2007, what material terms were left to discuss by the end of November 2007? A. I think the forfeiture amount was left.

Q. Other than that, was every other material term of the plea agreement pretty much settled upon? A. I probably would need to look at precisely the agreement, the date it was signed, to be able to 100 percent answer that. But we agreed on terms of the agreement that would be reflected in the agreement. But there was issue about forfeiture of

assets. It was very complicated and we were exchanging information back and forth. Q. About the forfeiture? A. About the forfeiture aspects. Q. But the sentencing guidelines recommendations, those had

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all been agreed upon? A. They had been agreed upon.

Q. And, in fact, back then, do you recall the last issue before the forfeiture that was discussed and agreed upon? A. When I say agreed upon, the Government agreed as to what they would do and I was in discussions with the client about his agreement to what the Government would agree to. Q. And --

A. And the last thing that I remember was -- I'm a little vague about the sequence, but we had discussions about the right to ask for a departure downward that had not been included in the original discussions. Q. Might refer to it as Booker, the right to argue Booker? A. The right to make Booker arguments and that we would not

be limited to what had been agreed upon but would be allowed to argue for less. Q. And did the Government agree to permit that by November 2007? A. The Government ultimately agreed to permit that. I'm just not able to state the date.

Q. I understand, but it was in or around November 2007? A. That would be correct. Q. And once that was agreed upon, the only thing left was the issue of dollars, forfeiture money, correct? A. That would be correct.

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Q. And did you discuss the plea agreement with your client back in October, November 2007?

A. We had numerous discussions about what the content of the Government's proposal was and its effect. Q. Thorough discussions? A. What? Q. Thorough discussions? A. I believe they were thorough discussions.

Q. Continued to discuss that plea agreement and the possibility of a plea even after November 2007? A. Yes. Q. In December and January 2008 and February 2008? A. Yes. Q. Up to the time of the plea in early March 2008?

A. Yes. Q. And in talking about that, you talked about the various rights that the Defendant would have that he'd be giving up if he pled guilty, correct? A. That was thoroughly covered. Q. Okay. Now, in March, how did it end up that your client

ended up pleading guilty? Can you characterize that for us?THE COURT: What was the question again? I'm sorry.

Q. (By Mr. Sommerfeld) Would you please characterize for us your client's ultimate decision to plead guilty in March 2008? A. Chris appeared in my office and said he had made the

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decision to plead. Up to that time I had been asking what his decision was. I had strongly by that time recommended that he

plead and had told him I believed it was in his best interest. He had not agreed to plead. He was very reluctant to plead.

After having thorough discussions both with myself and Don -- and he ultimately would discuss things with Don Samuel, my partner, and with me -- he appeared in my office and said that he had decided to accept the plea.

Q. And did -- THE COURT: Let me ask you this, Mr. Garland. How

long had he taken this under consideration before he came into your office and finally told you he was going to plead guilty, roughly?

THE WITNESS: For a long time.

THE COURT: For a long time. THE WITNESS: It had been an evolving process, Your

Honor, in which he would ask questions, we would deal with issues. The great portion of the issue we dealt with was our ability to present our advice of counsel, I would say umbrella of issues in the defense of his case and a lot of discussion

about that. So it evolved over a long time. THE COURT: When you say a long time, over months? THE WITNESS: I would say, my memory would be -- THE COURT: Your best recollection. THE WITNESS: More than two weeks.

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THE COURT: More than two weeks, okay. THE WITNESS: And perhaps considerably more than

that. But date-wise, he would come in, we would talk and he was very conflicted about it. Q. (By Mr. Sommerfeld) And more than two weeks, that's the ultimate plea. In fact, you had been discussing the plea agreement with him and the potential ramifications of a plea for months, as you just said, back to October or November 2008?

A. Yes, for a long time. Q. We've heard a lot -- and the plea that was ultimately entered, before I leave that, in March 2008, was the same plea that had been negotiated in November but now with the forfeiture amount added; is that correct? A. That's correct.

Q. There had been talk about deadlines and a motion in limine so I want to discuss that with you. The United States filed a motion in limine to exclude the advice of counsel defense at the deadline for motions in limine being filed. Do you recall that? A. Yes.

Q. Did you know when that motion in limine would be decided by the judge? A. No. Q. Does any counsel know when the judge is going to issue an opinion on a motion?

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A. No. Q. Did you tell Mr. Stoufflet, the Defendant, that because

the Government had filed a motion he couldn't raise the defense? A. No. Q. Did you ever tell him because the Government filed a motion that he's defenseless? A. No.

Q. There's been talk about a short deadline. The Defendant pled a week before trial, correct? A. I think so. Q. Within a week. Was a deadline set on the Defendant accepting a plea by the Government? A. Yes. There had been a number of deadlines and we had had

discussions saying we needed more time. And we did need more time because Chris was really reflecting over his struggle with pleading guilty and it was where the Government would say, well, listen, we've got to have it now. And I would keep begging, saying that we hadn't been able to reach a decision. So it kind of kept getting extended.

When that happens, Your Honor, you're always trying to determine is the deadline the deadline. And I concluded finally that we had a deadline that was a real deadline and that the plea offer would be withdrawn. At least I believed that the Government would not give any more concession or delay

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in making the decision and that's what they told me. And I told Chris that I believed that and that

therefore it was critical that the benefits of the plea agreement be accepted if they ever were and that the decision be made as to whether or not to plead or go to trial and I strongly advised him that I thought it was in his best interest here in this court before you to enter a plea. Q. Just to cover briefly, you mentioned this wasn't the first

deadline. There had been ample previous deadlines? A. There had been a number of deadlines that I would always say we're working on the resolution. I would say my client is struggling with what he wants to do finally and would say, well, let's get to the bottom of it, we have a trial upon us, if we're going to plead this is it, et cetera.

Q. But at your request the United States would extend the deadline? A. That is correct. Q. The Defendant in his testimony stated that he was railroaded into a plea. Was he railroaded into a plea? A. I don't know what Chris exactly means by the term

"railroaded." If that term is used to mean he was coerced by Don or I to plead guilty, that would be incorrect. If he means he felt like he had no choices left and gave up on his resistance to pleading, faced with the strong advice from Don and I, he was receiving strong advice, that advice was in fact

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coupled with the statement it had to be ultimately his decision. For a long time I did not give him advice on that

but we reached a point where I felt like I should. I kept saying for a long time it would have to be his decision, we could go one way or the other.

So the term "railroading," if it means coerced, no, he was not. Q. Well, we're called counselors, right? It's your job to

counsel clients, so it's your job to give him advice, correct? A. That's correct. Q. Even strong advice, right? A. That's correct, as long as you don't override his free will. Q. Did you override his free will?

A. I do not believe I did. Q. You mentioned, before I leave this topic, your advice was to take the plea in March? A. That is correct. Q. You talked about the negotiations in November. Was your advice for him to take the plea in November?

A. Yes. Q. And, again, no motion in limine had been filed at that time but that was your advice based on a strategic decision? A. All of the facts in the case that we had analyzed, and we had thoroughly analyzed the case, there was always more that

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could be done in this case and the issue of whether or not we could get the evidence in of all the legal advice that he was

given and upon which he did rely and whether we effectively could do that was weighed and thought about and worried about. And we ultimately advised him that the risk in this case was higher than he should take and we didn't know what the judge would rule and that was our advice. Right or wrong, it was my heartfelt advice.

Q. Even back in November? A. Yes. Q. The Defendant said during his testimony that you pressured him into pleading guilty and that you told him what to say during the plea hearing and how to say it. Did you advise him throughout what would happen during the plea hearing?

A. I think it went like this: I reviewed with him what would happen at a plea. I reviewed with him that he would have to acknowledge, in fact, that he would guilty -- was guilty. I told him that the plea would not be accepted if he did not state that he was guilty. And I explained that we would listen to the facts that were presented and he should listen to those

and acknowledge the truth of those facts if they were true; that every precise fact recited by the Government wouldn't have to be 100 percent that we agreed to but we had to agree that there was enough in factual recitation what the Government stated to be true that would support a guilty plea.

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Q. And let's talk about those facts in this plea agreement. Slightly unusual but not unheard of, the recitation of facts

was actually included in the plea agreement, correct? A. Correct. Q. Actually included back in November in the plea agreement, right? A. Yes. Q. So plenty of opportunity to go over the facts that the

Government was going to recite? A. Yes. Q. Did you go over those with the Defendant? A. Yes. Q. Thoroughly? A. Yes.

Q. Did you ever tell the Defendant to do anything other than tell the truth? A. No. Q. Did you advise him to sign and give answers that were anything but the truth? A. I did not.

Q. You were under oath at the plea hearing -- well, not under oath, but you're an officer of the Court and you gave answers during the plea hearing, correct? A. Yes. Q. And you told the judge that you believed it was a plea

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given freely and voluntarily, correct? A. Yes.

Q. The last point I think I want to discuss is the Defendant mentioned during his testimony that it was your plan with him to not argue innocence at the time of the plea but to argue innocence at sentencing. Was that your plan, to argue innocence at sentencing? A. It would not have been my plan to assert his innocence. I

would have strongly asserted that all of the legal advice he got, for which he paid millions of dollars, were mitigation, facts that we would have strongly urged this Court to consider. And I believe in our submission of the presentence report we said you should consider and it was detailed and it was documented what should be considered.

And we would have presented that strongly as evidence mitigating the degree of his guilt and certainly calling for leniency in punishment, given the unusual nature of the law, the way the law kept changing, the fact that he paid millions for some of the best attorneys in America, none of whom told him what you're doing is illegal, none of -- that is, that

you're committing a crime, stop. Some of them said that he might be committing illegal acts but they were -- but none of them said you stop, don't do this business, it's a crime.

And that included Buddy Parker, Craig Gillen, Jerry Froelich, Arent Fox, Kilpatrick Stockton, lawyers, various

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lawyers that were hired full-time. So I felt that there was -- and I can understand him

putting the words on it that he thought I said we would argue that he was innocent, but we would have said, no, he is guilty under the facts that the Government can prove and that he knew about, but there's enormous mitigation that we would have urged the Court to consider.

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

best interest to plead, that if we -- but we were running the risk the Court might rule it all out in our trial and then we wouldn't have much of an ability to get him acquitted. Q. And I'm not going to get into the facts of the advice of counsel defense, that's not why we're here, but you understood it was a mixed bag factually, as well as legally, correct?

A. There was some bad facts in the advice of counsel. Q. And so it was part of this strategic decision, even as far back as November, to take the plea?

MR. ZIMMERMAN: Objection; leading, Your Honor. THE COURT: Try not to lead. THE WITNESS: We were considering that at all times.

Q. (By Mr. Sommerfeld) Understood. A. And delayed furnishing our documents to the Government as much as I could until we had to reach crisis point that we would have our documents blocked if we didn't turn them over. We turned them over and the good and the bad were in there. We

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just felt like for mitigation the good way outweighed the bad. Q. And that was the position, you were going to present

evidence in mitigation, I take it? A. Evidence in mitigation. I can understand that he misunderstood that.

MR. SOMMERFELD: May I have just one moment? (Pause in the proceedings.)MR. SOMMERFELD: Your Honor, I have no further

questions of this witness. THE COURT: Mr. Zimmerman? MR. ZIMMERMAN: Very brief, Your Honor.

CROSS-EXAMINATIONBY MR. ZIMMERMAN: Q. Good afternoon, Mr. Garland.

A. Good afternoon, sir. Q. I'm just going to cover real brief areas with you. You stated that Chris Stoufflet was conflicted about pleading guilty, right? A. Very conflicted. Q. And Chris sometimes liked to mull things over for a long

period of time? A. That is true. Q. And the Government asked you back, I think it was starting November 2007, there were some plea negotiations that had begun to start? They started November 2007?

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A. I always was trying to figure out what's the best he could get out of the Government --

Q. As we all do. A. -- and would negotiate. But until Chris finally said he, in fact, would do it, it was always subject to the client's determination, in fact, that he would do it.

And sometimes when you negotiate like that, as you know, you've got to get the Government to say what they will

do, while at the same time you're talking to your client about what he will do, and it's a process that takes a period of time before that moment may gel. It may never gel. And so that's what was going on. Q. Sure, it's a give and take? A. It was give and take.

Q. And this is a pretty complex case? A. I felt so. Q. This wasn't the normal run-of-the-mill drug case where someone sold some drugs on the street? A. No. It had unique legal issues. Q. Would you agree the reason in the end Chris wanted to

plead guilty was -- A. Excuse me, I did not hear what you said. Q. I'm sorry. You would agree that Mr. Stoufflet decided to enter his plea in March 2008, because the Government was moving to exclude his advice of counsel defense?

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MR. SOMMERFELD: Objection; calls for speculation. He can't testify why the Defendant --

THE COURT: I'll let him answer the question. THE WITNESS: I believe that the Government's motion

had a substantial impact on Chris, from my conversations with Chris. And I think it was that final moment when he was considering the risk that that motion would be granted, that that was a factor that played into his decision. And we told

him, you know, we didn't -- well, we told him about what could or could not happen. Q. (By Mr. Zimmerman) The fact that he might -- his advice of counsel defense would be removed would basically -- would leave him defenseless at that point? A. It would have been extremely difficult.

Q. So that that factor, as you termed it, was actually the turning point for Chris in pleading guilty? A. That fact had been discussed, the possibilities, but it crystallized with the Government's strong assertion in its brief, which we gave to Chris and went over. We had our side of that argument. But the tea leaves hadn't looked that good

for us as we were trying to read what the judge would do from our prior motion to dismiss the case and -- but there's no doubt in my mind that the filing of that motion and the realization that his defense might be removed played a major role in his thought process.

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Q. And that was in March of 2008? A. Whatever the record shows as to when he responded.

Q. Let me turn to, there's some testimony about an associate of yours, David Levitt, previous testimony, that had also worked on Chris's case. A. Yes.

MR. SOMMERFELD: Your Honor, may I object? I think this is going to be beyond the scope of direct. I could wait

for the question but there was no question on direct about David Levitt.

MR. ZIMMERMAN: There's some previous testimony. This goes to the advice Mr. Garland, Mr. Samuel may have given and --

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

question. Q. (By Mr. Zimmerman) David Levitt also worked on Chris's case, right? A. Yes. Q. And did he assist Chris through some of these plea negotiations?

MR. SOMMERFELD: Objection; it's beyond the scope. MR. ZIMMERMAN: Beyond the scope, there's discussion

about plea negotiations, I'm allowed to inquire as to who was doing the negotiating.

THE COURT: Who was doing --

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MR. ZIMMERMAN: Who did the negotiating with the plea. I mean, did Mr. Levitt assist in the negotiations with

the Government or was it just Mr. Garland and Mr. Samuel? THE COURT: I'll let you ask him that. Go ahead. THE WITNESS: Mr. Levitt would have talked frequently

with Chris and would have intersected the process and it wasn't uncommon for him to talk with Chris. But Chris would ultimately talk with myself or Don and my recollection is that

I did, and then sometimes Don did, the negotiation of the contents of the plea.

MR. ZIMMERMAN: Thank you. THE COURT: Thank you. Anything on redirect, Mr. Sommerfeld? MR. SOMMERFELD: Very briefly, Your Honor.

REDIRECT EXAMINATIONBY MR. SOMMERFELD: Q. You mentioned the motion in limine played a part, the fact that defense might be removed. Was the Government's filing of the motion in limine the first time you discussed with the Defendant the possibility that his defense might not be

applicable at all? A. No. Q. You had discussed that earlier on with him? A. Any number of times we had discussed that possibility and we discussed how we would at trial attempt to get all this

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information before the jury and get the judge to admit it. Q. Because that was going to be difficult as well, and you

knew that even before the Government's motion, correct? A. Well, it was going to be something where we knew the Government was going to resist it mightily. You all discussed with us at length why you believed it was not admissible. Both Mr. Chartash and yourself asserted that it was not relevant and we asserted it was, and we debated, as lawyers debate, back and

forth about it. We, of course, felt our side was correct -- Q. Of course. A. -- and felt like, you know, there was a possibility that we would succeed in that. Q. But the filing of the motion in limine was not a shock to you?

A. No. I think we had predicted at some point it would come. Q. You mentioned -- A. I would hope -- I was hoping that you all would lay back and I'd get to make an opening statement and get it in front of the jury before you kept it out, or that the judge might agree with me.

Q. Last point you mentioned, the actual innocence, if there was no advice of defense counsel, defense counsel mentioned here that that could be a problem. Is that because -- was there in the defense strategy, was there any doubt that the Defendant in fact did the actions alleged in the indictment?

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A. He never contended that he did not do the acts. He always conceded that he was in the business. This was not about Chris

saying something hadn't -- I mean, the core facts, there were a lot of peripheral claims from some witnesses and others that we felt were false and that the Government was being told things that were not true. And part of our strategy was that we would reveal the falseness of some claims of the Government witnesses.

But on the key facts as alleged in the indictment, as set forth in the plea agreement, there never really was a dispute that those events occurred. The question was his intent and his right to raise a defense of lack of specific intent. Q. Because of the advice of counsel he received?

A. Because of the advice of counsel in that regard. And it was a difficult decision for me to say I believe it is in your best interest under all the circumstances, because deeply -- he was deeply troubled with the idea that he had committed a crime.

MR. SOMMERFELD: I have no further questions, Your

Honor. THE COURT: Thank you. Mr. Zimmerman, any additional questions on recross? MR. ZIMMERMAN: One moment, Your Honor. THE COURT: Sure.

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(Pause in the proceedings.)MR. ZIMMERMAN: No further questions, Your Honor.

THE COURT: Thank you, you may step down. Thank you, Mr. Garland.

Call your next witness. MR. SOMMERFELD: Your Honor, United States calls Bob

Kuykendall. THE COURT: Please raise your right hand.

ROBERT KUYKENDALL,being first duly sworn or affirmed, was examined and testified as follows:

THE COURT: Please be seated. Please state your name for the record.

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

THE COURT: Thank you. Your witness. MR. SOMMERFELD: Thank you, Your Honor.

DIRECT EXAMINATIONBY MR. SOMMERFELD: Q. Good afternoon.

A. Good afternoon. Q. Where do you work, sir? A. I'm a special agent with the Food and Drug Administration's Office of Criminal Investigations. Q. How long have you been a criminal investigator?

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A. Well, I've been with the FDA since May of 2002, but I've been a criminal investigator for over 15 years. I spent over

seven years as a U.S. postal inspector. Q. Trained in the -- have you been trained in conducting interviews? A. Yes. Q. How many interviews have you conducted? A. Countless. I couldn't tell you. Over hundreds.

Q. Are you the case agent on the e-Scripts investigation, the investigation which led to the indictment and conviction of the Defendant in this case? A. Yes, I am. Q. I want to bring your attention to meetings with the Defendant after the guilty plea was entered. Were you involved

in any meetings with the Defendant after the guilty plea was entered? A. Yes, I was. Two, two meetings. Q. When did those take place? A. August and in September of 2008. Q. During those meetings do you recall whether or not the

Defendant was advised not to speak? A. He was advised on both occasions more than once by more than one individual. Q. Let's talk about the first meeting. Just who was present at the first meeting?

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A. AUSA Chartash, you, myself, Mr. Stoufflet, and Don Samuel. Q. Second meeting, who was present?

A. All but Don Samuel. Q. So counsel was present in August but not in September? A. Correct. Q. Do you recall anything discussed at the second meeting with Defendant about his counsel not being present? A. Before the meeting started, I remember, and I wasn't

involved in this directly but I heard the conversation where apparently Mr. Stoufflet had a problem with the U.S. Attorney's Office cc'ing Don on the fact that the meeting would take place, as if --

THE COURT: Is that Don Samuel? Who is Don? You referred to Don. Don who?

MR. SOMMERFELD: Don Samuel. THE WITNESS: Don Samuel. THE COURT: That's what I mean. THE WITNESS: Yes, yes, sir. He wasn't there but he

had been copied on this message and Mr. Chartash said that, you know, he's still your record -- he's still your attorney on

record, if we're going to meet without him, you know, he still has to know that we're here. Q. (By Mr. Sommerfeld) Let's talk about the substance of these meetings. What did the Defendant, just overall, disclose at the meetings? What did he say?

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A. The first meeting he requested that -- the gist of the meeting was that he wanted to disclose, you know, truth, he

wanted to talk about, you know, what was really going on in the case, you know, wanted to get the truth out there. Q. And what was the truth that he wanted to discuss? A. Well, the truth, the focus of the truth was that, if I may paraphrase and I'll go back if you would like me to be more specific, but because he showed us copies of documents related

to the lawyers' involvement, specifically primarily it was the contracts, the fact that the lawyers helped write and rewrite and draft the contracts, his point was the lawyers were therefore very intimately involved in the process, they had knowledge, he hired the lawyers to help him do the right thing, et cetera.

Q. So he wanted to talk about the lawyers and their participation and advice. What else, what other information did he want to give during those meetings? 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.

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

Q. 37 drivers' licenses? A. Right. Q. 37 customers? A. 37, yes. Some had just a driver's license, some had a driver's license with an attached sheet of date of birth. And his statement was that this was, you know, evidence that he was

attempting to determine the truth -- the true identity of these people when they were ordering online. Q. What was the time frame of those drivers' licenses? A. The majority of these were in 2001. They did creep over to 2002. Q. Did he provide anything else than this one binder of 2001,

2002? A. No. The other documents were copies of some of the e-mails back to his prior statement about the involvement of the lawyers. Q. But setting aside involvement of lawyers, was he asked to

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provide everything he could regarding verification of information?

A. Yeah. There were several -- there were a few topics but part of that related to -- the first part of the first meeting in August, when Mr. Stoufflet asked to meet with us, we had been contacted by a California agency, law enforcement agency, to ask him questions about a case that wasn't really e-Scripts related, it was maybe one of the affiliates was involved in a

criminal case, and he agreed to answer questions. In those questions, like we asked him questions about

an affiliate and he said I'll provide that. He said that he would provide those but we never received those. Q. So out-of-district litigation, how many questions were asked him?

A. 13. Q. 13, okay. But other than those and other than the attorney advice, anything else besides this binder of drivers' licenses? A. No. Q. Let's go back to the binder of drivers' licenses. You

said there were a few dozen, three dozen or so? A. Right, 37 of them. Q. Are you familiar with, just generally, how many prescriptions we're talking about in this case came from e-Scripts? Or how about Dr. Smith? There was a trial against

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Dr. Smith, do you recall that? A. Dr. Andre Smith had roughly 120,000.

Q. That was one doctor? A. That was one doctor. I know we had well over 300,000. Q. Okay. And so here we have three dozen drivers' licenses, 37? A. Right. Q. Could you tell us, did the Defendant explain why these

drivers' licenses were collected? A. Right. Well, I started that line of questioning by basically telling Mr. Stoufflet that not only did I not think it helped his position but I think it looked bad for him that, you know, that if these were the documents that he wanted to produce to us that, you know, the light of truth, that it

didn't look very good statistically from a ratio standpoint. Then we got into a conversation of why only those

were obtained and Mr. Stoufflet said those were actually triggered after the computer process red flag went up. In other words, if an order triggered an address, two names at one address, then it would then be rejected, then that process

would kick in. So that's not a process that took place on all 300,000-plus orders. Q. Do you recall generally of all the orders that were put in by computer, how many were automatically accepted versus flagged for rejection?

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A. We had a witness who ran a computer spreadsheet at the primary who I interviewed who said that he --

MR. ZIMMERMAN: Objection to hearsay. THE COURT: I'm going to sustain the objection. MR. SOMMERFELD: Okay.

Q. (By Mr. Sommerfeld) To your knowledge of reviewing the records in the case and reviewing the database, do you know approximately how many were accepted?

MR. ZIMMERMAN: Objection; speculation. He just said he had someone else do it.

THE COURT: He's the case agent, right? MR. SOMMERFELD: He's the case agent. THE COURT: I'll let him testify. THE WITNESS: I read a computer-generated report that

indicated in the upper 90 percent of all applications were accepted. Q. (By Mr. Sommerfeld) And so were these drivers' licenses from any of those that were accepted like that? A. Well, I would only say no based on his, Mr. Stoufflet's -- Q. According to Mr. Stoufflet.

A. Correct. Q. So this is from the small portion that weren't automatically accepted? A. Right. Q. And so then they collected drivers' licenses?

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

still send out the drugs even if the computer had rejected them?

MR. ZIMMERMAN: Objection to both the form of question, leading, and the relevance. It's going on and on.

THE COURT: I'm going to sustain the objection. Don't lead him, please. Objection sustained.

Q. (By Mr. Sommerfeld) Did the Defendant tell us anything else about the drivers' licenses that had been collected? A. If you will allow me a second. Q. If you don't recall, that's fine, but whatever you -- A. No. His specific was that this started early on, that it improved. He did indicate that there were more to provide and

that this was generally done as -- that this wasn't done 100 percent of the time; this was done as a -- once that order had been flagged. Q. He said there were more to provide. Did he ever provide more? A. No.

Q. You were sitting here. You heard during the direct he, during his testimony, he said he gave us innocence of pretty much everything in the indictment. Any other evidence of innocence other than that whole advice of counsel and this binder of drivers' licenses?

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A. No. Those are the two issues of discussion. Q. And, again, just to finish this up, was he advised during

this, bad idea, you should go into this with an attorney? A. He was advised prior to both conversations -- and the wording was pretty strong, frankly, stronger, as typically I'm the one doing the interviews out in the field by myself, it was much stronger language than I typically use. You know, we can't understand why you're meeting, you're risking a lot,

we're not sure why you're meeting, you know, this is risky for you, et cetera.

MR. SOMMERFELD: No further questions, Your Honor. THE COURT: Thank you. Mr. Zimmerman, you may cross-examine.MR. ZIMMERMAN: Not to go too far afield, first of

all, does the Government have Jencks they want to turn over at this point?

MR. SOMMERFELD: I offered you the notes but if you want his notes, you're welcome to take his notes.

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

our last meeting. Do you want to hand him the notes? THE COURT: I'm sorry? MR. ZIMMERMAN: Jencks, Your Honor, his reports. THE COURT: Okay, go ahead.

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CROSS-EXAMINATIONBY MR. ZIMMERMAN:

Q. There's a lot of numbers you're testifying to. Agent, did you record this conversation? A. No. We don't typically record conversations. Q. You testified that he wanted to provide you with identifications, right? A. Yes.

Q. To show you that there were some customer verifications done, right? A. Yes. Q. To give you some sort of sampling of that, right? A. No. Q. He told you this is all he ever did, was 37 of them?

A. He didn't say either way. He said he had documents to show what they were doing. And then I said, dude, there's only 37 here, I mean, this is not -- he never indicated there were more. He never indicated it was just a sampling. Q. So you just don't know is the answer? A. That's exactly right.

Q. So he might have had thousands more identifications, you just have no idea? A. I would have an idea that there are not based on the fact that we said anything else you have you're welcome to give to us.

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Q. But you don't know the reason why he never came back to give it to you, right?

A. That's right. Q. At that point he had already pled guilty, right? A. Oh, yes. Q. So this is way after his guilty plea? A. Exactly. Q. This is in August of 2008?

A. Yes, sir. Q. I guess this is only a few months after he pled guilty, I'm sorry. A. Seemed like a long time. Q. Now, Mr. Stoufflet, it's not his responsibility to provide the Government with these documents; it would have been his

lawyers', right? A. I guess a combination, I would think. As a criminal investigator, if we subpoenaed him or asked for records, either he would give them to us, but generally he would do it with counsel. Q. Right, but you turn over documents to the Government,

right, they're the lawyers? A. Usually. Q. Well, we hope so. And then you provide -- then the Government provides that to the defendants' lawyers, right? A. Right.

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Q. You probably agree same thing would happen, the defendant would turn over documents to his lawyers and they in turn would

turn over to the Government, right? A. Yes. Q. And I know you're not an attorney but you would agree that's usually how the lawyer is going to introduce evidence, the Government is allowed to see it first, right? A. Yes.

Q. You've never seen up to this point any of these identifications in the whole case? A. Right. Q. The lawyers never provided it to you? A. Right. Q. Okay. So they didn't do their job, I guess, right, by

turning that over, Mr. Garland, Mr. Samuel? MR. SOMMERFELD: Objection, Your Honor. I don't

think this witness can comment -- THE WITNESS: I'm not a lawyer. MR. SOMMERFELD: -- whether or not defense counsel

did their job.

THE COURT: I'm going to sustain the objection. Q. (By Mr. Zimmerman) Did you ever attempt to contact his lawyer to get more of those identifications? A. Not my job, sir. Q. Do you know if these two lawyers, Mr. Chartash, Mr.

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Sommerfeld, ever tried? A. I have no idea.

MR. ZIMMERMAN: Nothing further. THE COURT: Thank you. Mr. Sommerfeld? MR. SOMMERFELD: Nothing further for this witness,

Your Honor. THE COURT: Thank you, you may step down.

MR. SOMMERFELD: And, Your Honor, the United States has no further response witnesses.

THE COURT: Thank you. Before I hear closing arguments from counsel I want to ascertain one thing. Has the Government, has anyone submitted into evidence the plea agreement between the Defendant and the Government?

MR. SOMMERFELD: Your Honor, I believe it's already part of the record.

THE COURT: Okay, because I did -- MR. SOMMERFELD: It's officially on the docket. THE COURT: I'm familiar with that, I just want to

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

record. So are you all ready or do you need a few minutes? MR. ZIMMERMAN: Your Honor, I'm ready but I think

since it's my burden I get to open and close. Would the Court allow me to reserve and just close?

THE COURT: How much time do you want?

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MR. ZIMMERMAN: I would tell the Court 35 minutes but I'm going to try to make it much shorter than that. I will be

as straightforward as possible. Of course, it depends on how much Mr. Chartash and Mr. Sommerfeld sling my way.

MR. SOMMERFELD: Your Honor, I'm going to object. It's the Defendant's burden here and I feel like the United States is being sandbagged. If he wants to close and show how he met his burden, I sit ready to respond to that. I feel I'm

going to respond and then be sandbagged with a rebuttal that I won't be permitted to respond to. It's the Defendant's burden, so if he wants to close, that's fine. If not, we're ready to close and walk out and Your Honor can make a ruling.

THE COURT: Well, I'll hear closing arguments, both sides one time. We don't have a jury here. You want to go

last, you want to go first, I'll hear from both sides, closing arguments on the evidence in this case, and that's it because I want to make a decision as quick as I can.

There's one case I think I want to revisit, I think I did look at it before I was on medical leave and that would be a case involving a four-prong test. What was the name of that

case? MR. ZIMMERMAN: United States v. Buckles and Brehm. MR. SOMMERFELD: We cited United States v. Brehm,

Your Honor, for that proposition. However, it's -- THE COURT: Write that down on a piece of paper

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because I might want to look at that again. After I hear the closing arguments, I just might want to review it again, the

case which set forth the four-prong test. MR. SOMMERFELD: Your Honor, so I'm clear, do

you want -- THE COURT: By the Eleventh Circuit, the one

enunciated by the Eleventh Circuit. MR. SOMMERFELD: The one that's cited in our brief,

Your Honor, and we rely upon, although there are many others use the four-part test as well, is the United States v. Brehm.

THE COURT: Is that an Eleventh Circuit case? MR. SOMMERFELD: It's an Eleventh Circuit case and it

is 442 F.3d -- THE COURT: Write it down.

MR. ZIMMERMAN: Judge, do you want my copy of it? MR. SOMMERFELD: -- F.3d 1291 and I refer you to page

1298, it's Eleventh Circuit, 2006. I'll give you it to you. Defense will give a copy.

THE COURT: Go ahead. MR. SOMMERFELD: Whatever your pleasure, who do you

want to address you first? THE COURT: Go ahead. MR. SOMMERFELD: I'll address. Your Honor, as I

mentioned, this is unusual. It's unusual because it's the Defendant's burden so I'm responding to no argument. I would

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hope for the opportunity to give some sort of response. I don't know what's coming and one of the reasons I don't know

what's coming is because the evidence is simply overwhelming in this --

THE COURT: If I feel you need to respond, I'll let you know. Let's do it that way. Let's go ahead.

MR. SOMMERFELD: I'm not going to take long. You've read four briefs about this, this is our third hearing about

this. You've heard enough. And what it comes back to is exactly what the United States put in our brief, which is there's no legal justification for this.

It goes beyond that because if you look at the case law, and we cite it thoroughly in our briefs, the controlling case law and that of other circuits, if Defendant were

permitted to withdraw his plea here on the basis of what we've heard, it would be a complete outlier, complete outlier.

There is no case I've seen and there is no case cited by the Defendant where a defendant has been permitted to withdraw his guilty plea essentially just claiming he lied during his plea colloquy. And that's what he's saying: I lied

during my plea colloquy. There's no case I've seen, the defense hasn't cited

any, where the defendant's been permitted to withdraw his guilty plea because he'd been given a deadline to accept his plea. That happens all the time in our courts. If we didn't

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have deadlines I don't know if defendants would accept pleas. There's no case I've seen where a defendant has been

permitted to withdraw his plea because the Government filed a motion in limine. That, by the way, at the time this plea hadn't even been ruled upon. We do motions in limine all the time. Filing a motion in limine does not deprive anyone of the right to fair trial. In fact, motions in limine ensure that trials will be fair. They will be fair to the defendant and

fair to the people of the United States. That's why we file them, and there's no case, and I defy the defense to provide a case, where motion in limine provides grounds for a defendant to later withdraw his plea.

And that doesn't even begin to get to the fact that the Defendant didn't file for withdrawal of his guilty plea for

11-1/2 months after the guilty plea. Each of those facts that he relies upon, and that's

really all he's relying upon, he's saying: I lied to you under oath, Your Honor, I'm a perjurer, I lied, I stood before you and when I said I wasn't pressured, I lied, the Government gave me 72 hours to accept a plea, which we know is a stretch of the

truth.The Government filed a motion in limine. Each of

those things was true at the time he made his plea. Where was he for 50 weeks? And the case law is very clear, and we cite a ton of it, that weeks can be too much, five months is certainly

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too much, three months is too much, eight months is too much and the time is too much because of the prejudice to the

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

a second jury. There's prejudice to the Government. There's judicial resources. We already had two full juries.

He felt like there was a problem because of the motion in limine, where was he? I can't do what Mr. Chartash

does, he's much more animated and entertaining than I will ever be but I trust you recall during our last hearing he said, ah, when did you see the Court's decision? The Defendant said he saw the Court's decision on the motion in limine by the end of March. You ran right in at the end of March said: Ah-hah, I win I have a defense, I want a trial? No, he doesn't.

He doesn't come in in March, he doesn't come in in April, he doesn't come in in May, he doesn't come in June.

He knows another trial is coming up. Does he come in and say I want my trial, Your Honor, I was pressured, I lied to you, I have a defense, I asked for you to withdraw my plea? Noh. He sits and he waits. Tangible prejudice to the

Government, Your Honor. And let me say defense might say -- again I have to

kind of hypothesize here -- you know, he was doing all he could.

Nonsense, Your Honor, nonsense. He met with the

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United States twice, once in August and once in September. What was he doing in April, May, June, July?

Now, the defense submitted an e-mail from May talking about meeting with the United States but I'll urge you to look at that exhibit. Actually, he's talking in that e-mail string about meeting with his co-defendants and he would like the United States to be present.

Regardless, he had every opportunity to file this

motion to withdraw his plea. He's prolific. He's written to Your Honor before, we've gotten copies. Where's the letter in April, May, June, July, August?

Okay, so now we're August. Now the trial's done with. Where is he in September, October? If his counsel is ineffective, how come Don Samuel is helping him file his

responses to the PSR in October? Eight months after the guilty plea. Because he's not ineffective, he's doing a great job. That's the Defendant's words, that was a great objection.

So, Your Honor, he sits and he waits. He waits through two trials. He waits six months after the second trial to file a motion to withdraw. And the cases say three months

is too long, five months is too long. Your Honor, again, I have not found a single case,

and the defense has not cited a single case, where the defendant has been permitted to withdraw his guilty plea 11-1/2 months following the guilty plea, much less one where there

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have been two separate juries called and a full trial. Now, I imagine the defense again is going to point to

Don Samuel's e-mail where Don advises him, you know, he asks is this trial of the doctors, is that going to affect anything. And Don tells him a bit about the law. And you know there's no black letter law that says you can file it before your co-defendants' trial but you can't file it after your defendants' trial. Don advises him as to the law, there's

nothing specific that prohibits it. But, Your Honor, that's neither here nor here. The

issue is not excusable neglect. Nothing in Don's e-mail, nothing in Mr. Samuel's e-mail changes the prejudice to the Government and the waste of judicial resources because the Defendant waited six months even after that e-mail to file his

motion to withdraw. Now, you mentioned the Brehm standard and Brehm has

those four factors. I'm not going to walk through them. I'll point this out.

The first place in our case where those four factors appear is in Defendant's brief. Defendant filed a motion to

withdraw and he cited the four factors and he cited the Buckles case. We filed a response that showed Defendant wins on none of those four factors.

So it was a little surprising when we came in for our first hearing and Defendant says, you know what, we don't have

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to worry about those four factors because of the word "may." "May" is sort of ambiguous, I think the language in Brehm is

clear but let's look beyond the language. Every case I've seen in the Eleventh Circuit, in the

nineties, in the 2000s, cites the four factors, uses the four factors, every single case.

Again, the defense has not cited a single case -- I'm going to talk about the case they mentioned -- single case

where the Court says we're not using the four factors because it says "may."

The defense cites the Brown case where the formulation, the verbal formulation is the Court may consider the four factors. In Brehm it actually says the Court may consider the totality of the circumstances, we consider these

four factors regardless. In Brown, the defense likes to point that out because

it says the Court may consider the four factors liberally construed. But let's take a look at Brown.

In Brown a defendant comes back after pleading guilty and says I didn't understand the charges against me at the time

of the plea. District court denies his motion to withdraw his guilty plea, denies it without even a hearing. Eleventh Circuit affirms. Affirms without a hearing, no hearing necessary.

Brown is a case far, far from the idea that the Court

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can rule on this without considering the four factors, that if the four factors are against the Defendant, you know, you can

just rule and give him another trial anyway. The defense has not provided a single case where a court says these four factors are against the defendant but he gets a new trial anyway, not happening.

So that's the framework. Every case in the past 20 years that I have seen has considered, even the case cited by

the Defendant, the Brown case, sets forth those four factors and uses them as the framework. There's simply no question that's the framework.

The Defendant -- yes, Your Honor? THE COURT: I just wanted to also state that the

Defendant's motion to withdraw is twofold based on ineffective

assistance of counsel and whether or not there's a fair and just reason for allowing him to withdraw his plea, just want to state that.

MR. SOMMERFELD: And I'm happy to cover those. The Defendant has provided no fair and just reason. I think the ineffective was an attempt to provide a fair and just reason.

But regardless, the fair and just reason, the only reasons that the Defendant has mentioned up here when asked is I was given a 72-hour deadline, and we can talk about that, the Government filed a motion in limine, I lied during the hearing, and, oh, by the way, the Court ended up ruling in my favor -- that's his

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interpretation -- so the advice I got was wrong. And that's how he makes his ineffective claim.

Your Honor, that's far from ineffective assistance of counsel. We've talked about that and I trust you remember when Don Samuel was on the stand.

The defense's claim that if a counsel gives advice that later turns out to be wrong, that's ineffective assistance of counsel, that's not the law. It's very clear that if it's

an unsettled issue of law, courts don't require counsel to be clairvoyant.

Here we have what Don Samuel testified was an unsettled issue of law. We went through that completely and he gave his best opinion as to it. And you know what, Your Honor, there's no showing that Don Samuel or Ed Garland told him he

didn't have that defense or he thought the Court would rule against him. What they seemed to have said, if you look at the testimony, is we don't know how the Court is going to rule, we have put in our best arguments against it but you run the risk of the Court ruling against you. As a strategic decision we think it's best for you to plead.

But not only that, what we heard just a few minutes ago from Mr. Garland, even before the Government's motion, one, they considered the possibility and knew the Government would probably file that motion; and, two, he was advising the Defendant in November to take that plea. Why? There wasn't

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only legal problems, there were factual problems. For all the protestations of Defendant saying he

filed advice of counsel, Exhibit 4 from the Government, Arent Fox, what he calls the greatest firm in the world on these matters, says you do this, you risk going to jail, and the longer you do it, the more likely it is. And, oh, by the way, here's some other things you could do, we don't know they will help but they can mitigate the risk. And the Defendant doesn't

do them at all. Your Honor, there is no ineffective assistance of

counsel here. You heard it from Mr. Garland and Mr. Samuel, there is no ignorance of a settled principle of law. They looked at it and they gave their best evaluation, which was we're not sure what the Court is going to do but you run a

risk. That's not ineffective assistance of counsel. Even if they got it wrong it wouldn't be ineffective assistance of counsel.

And that's why I believe we heard in Defendant's second brief about ineffective assistance and we heard during our first hearing, Your Honor, the issue is ineffective

assistance.But after Mr. Samuel's testimony, there's no way the

record supported ineffective assistance of counsel. So then defense comes back here at the second hearing and says, you know what, we really don't have to prove ineffective assistance

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of counsel. One of the difficulties here is there's a moving

target. First the defense presents the four factors, then at the first hearing walks away from the four factors. Then the defense presents ineffective assistance of counsel, then the defense walks away from ineffective assistance of counsel at the second hearing.

Your Honor, in the defense's pleading the defense

says, quote, regarding the Defendant, "He indeed committed all the acts that the Government alleges he did and accepts full responsibility for those actions."

When Mr. Stoufflet takes the stand in the last hearing and says I didn't do it, all that was a lie, I lied before Your Honor and I gave evidence of my innocence to the

Court, and that was the whole point of calling Mr. Kuykendall. He gave a binder of 37 drivers' licenses of people who were rejected by the computer. That doesn't prove any innocence. That proves that the ones that were rejected by the computer, they were still trying to get them the drugs. And it's 37 out of hundreds of thousands.

So, Your Honor, the point is it's been a moving target, which makes it very difficult, of course, to address. But when you get back down to it, the factors talked about by courts, the four factors, the ineffective assistance standard, this is actually one of the easier cases. This would be an

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outlier were it granted. The Defendant talks a lot about the pressure and the

duress he felt. Your Honor, where the Government -- where the Defendant doesn't claim that he lied under oath, because he claims he lied under oath, we see here a pattern of manipulating the truth. And I think that's seen here with the 72 hours.

The Defendant wants you to believe that the

Government drops a surprise motion in limine and then drops the plea agreement with him and says 72 hours, you know, that's it.

I don't think there's even an ethical violation there. We're a week before trial. Getting three days to plead a week before trial isn't too bad. But, Your Honor, he wasn't given three days. We know from the testimony of both Mr.

Samuel and Mr. Garland this was talked about for months. We know from the Defendant's own letter he submitted in support of his original motion, he references discussions about the plea agreement in January and February of 2008. He was talking about this with them for months.

I don't doubt -- I don't know that the filing of the

motion in limine by the Government crystallized for him the risk. I'll take that as a given. But the fact is this was no surprise plea agreement. Every essential term in this plea agreement other than a forfeiture amount was negotiated thoroughly and done by November and he talked about it with his

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counsel for months. So this was no 72-hour surprise plea. That's a manipulation and a stretch of the truth.

That was sort of the point that Mr. Chartash was trying to make during his brief cross this morning. The Defendant says I really want to meet with these guys. He's telling Don Samuel I really want to meet with them, arrange the meeting. He wants the meeting. He comes to the meeting, Don Samuel comes to the first one, and then consents to him

going to the second one without counsel. He's advised throughout, you don't want to do this,

we're meeting with you, you sent your father to try to arrange this meeting, fine, we'll meet with you, you want the meeting, you shouldn't do this.

What does he turn around and do? He sends a letter

to the assistant attorney general accusing Mr. Chartash and myself of unethical behavior. Why? Because we did what he wanted and we met with him.

Now, again, I don't begrudge him sending any ethical letter. He can send anything he wants, this isn't about that personally, I don't care. What this is about is the Defendant

manipulating the truth. Now, he says he was railroaded. I think that we

don't need to spend a whole lot of time on this. When Your Honor asked him why he was railroaded he said because he was given 72 hours to accept a plea and because of the motion in

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limine.Again, nothing wrong with filing a motion in limine,

nothing wrong with getting 72 hours to accept a plea, and he was given plenty more time than that.

In fact, there's a case from the Seventh Circuit, the Walker case, Your Honor, where a defendant ended up with a 20-year jail sentence after being given 35 minutes to accept a plea. The jury was in the next room. He tried to withdraw his

plea afterwards. The district court denied it, upheld on appeal, 35 minutes.

You know, I think we're going to hear about the Defendant deserving a day in court and a right to trial. Every defendant has a right to trial. This Defendant had the right to trial but he made a decision. He made a strategic decision

and he was advised by his counsel, we heard about their advice, he was advised by the Court, he was advised in the plea agreement, you plead guilty, you give up your right to trial.

And that's really what this is about, do these guilty pleas mean anything? Because if the Defendant under these facts is permitted to withdraw his plea, we might as well not

have our half hour guilty plea hearings. If a defendant can come back 11 months later and say you know what, Your Honor, I lied during that, I want a trial now, why do we spend a half hour going through the guilty plea colloquy? We wouldn't.

And that's why courts say if you come before a court

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and you base your motion to withdraw your guilty plea on lying to the district court during plea colloquy, you face a tough

road, you face a higher burden. We're going to hear about liberally construed. Courts are very clear, and it's in our motion, you face a higher burden. You can't just come back and say you know what I said before, I lied, under oath there, I lied, now I'm telling you the truth.

Plus, Defendant's actions really speak more than his

words here. He says he's been consistent throughout except for that day. Your Honor, he's been consistent throughout in waiting strategically to see what happened. He did not come to this Court any time during those 11 months when he could have. He did not even look for new counsel until after he saw the PSR and get the objections to the PSR eight months later.

That really puts the lie, I think, to his claim that he is seeking a new trial because of the motion in limine. The motion in limine was decided March of 2007. If that was the reason why he wanted to withdraw his plea, where was he?

Thank you very much, Your Honor. THE COURT: Thank you, Mr. Sommerfeld.

Mr. Zimmerman? MR. ZIMMERMAN: Your Honor, this has been a long,

difficult case for my client, also for his counsel, who was appointed, I believe last December. I was appointed to try to undo what was already done.

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And I apologize for maybe some of my client's actions were not appropriate, sending letters to the Court, maybe

sending some letters to the Government. I would ask the Court not to take that into account in your decision that you make.

And clearly my client and I have parted ways with deciding how this case should be handled. But what we haven't parted ways on is that he believes he made the wrong choice under the wrong circumstances with the wrong advice.

This isn't a moving target. The motion that we initially filed to withdraw the guilty plea did go through the four factors. We need to show a fair and just reason, that the totality of circumstances may be considered and the case law says liberally construed for the defendant. We also alleged ineffective assistance of counsel against Mr. Garland and Mr.

Samuel, specifically for what they failed to do, which was analyze this case under an aiding and abetting theory.

Now, when we came in here we said, look, we just need to show this Court a fair and just reason. It says "may," that's an outlying, the Court clearly -- there is Eleventh Circuit law and clearly all those cases do say here's the

totality of the circumstances. So we're not denying the fact that's there, that's clear it does say "may."

But even if that's the case, we could go through those, and I will, I came in last time and said but we don't have to, just to clear things up, we don't have to show

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ineffectiveness necessarily to win the day. We can meet these factors or we can show ineffectiveness for this one issue. So

it hasn't been a moving target. The Government and I have spoken about this on, unfortunately, more than one occasion.

Mr. Stoufflet isn't here to curse the Government. I mean, I understand where he's at mentally. But he did have lawyers, both when he set up his company and then obviously he had Mr. Garland and Mr. Samuel representing him.

The cases that I cited in my motion, United States v. Buckles, United States v. Brown, which the Government cited, United States v. Schubert, talk about those factors being liberally construed.

The first issue is close assistance of counsel and this kind of will tie into my ineffective assistance of counsel

argument. This is not a case where Mr. Stoufflet stood on a

street corner or in a house and sold drugs personally. What he did was run a website which contracted physicians and pharmacies, and I'm not going to bore the court with the details, I believe you know that.

There is no federal law or state law directly on point about what made it a patient-physician relationship. Mr. Samuel testified under oath had the doctors in this case met with the patients and had a physical meeting, Mr. Stoufflet would never have been prosecuted. That would have made it

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legal. This isn't the typical 841 case that the Government likes to bring against drug dealers, completely different. As

I said in my motion, I'll say it again, this is a hodgepodge of state regulations coupled with 841. I believe Mr. Samuel testified to it.

Mr. Samuel testified that when researching the law on advice of counsel, he thought at one point of specific intent and then he came to start to believe the Government's position,

that maybe it was a general intent crime. But he admitted that he never looked at it from what

I stated before, that aiding and abetting point of view. And why is it aiding and abetting? Because Mr. Stoufflet, he didn't have the ability to write a prescription, he owned the company which I just discussed, he never himself sold or

possessed those drugs. So when you have aiding and abetting, and I've cited

some of the law in my motion, I'll cite it again, United States v. Jackson, 526 F.2d 1236, it's a 1976 Fifth Circuit case, and, Your Honor, I have copies for that -- for you. Basically aiding and abetting, you have to have a conscious --

consciously agree with somebody else and have the same intent. When you're an aider and abettor that increases that person's intent, makes it -- goes from general to specific intent. And Mr. Samuel agreed that he never looked at it from that point of view. Now, he and I may disagree, and he does disagree that he

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missed that, but that is what we believe and feel that he missed.

The Government will always say, if they're going to stand up and be allowed to rebut anything I say, that, well, everyone's charged as an aider and abettor are in the indictment. Well, the indictment puts someone on notice for what they're charged with. So I can't help if the Government put in his indictment that he's aiding and abetting a crime.

That's how a person is to understand how to defend the case. And as aiding and abetting, there's a willfulness element to it, person must be a willful participant in order to join the act, the common design, or scheme or plan.

Another case I cited was United States v. Jenkins, 779 F.2d 606, it's an Eleventh Circuit case. In that case the

Government must prove beyond a reasonable doubt the defendant had a deliberate, knowing, and specific intent to join the conspiracy. He's charged as aider and abettor, which is similar to conspiracy, that increases his intent.

Now, the Government cited in their brief, and I argue, well, it was an Appendix decision, U.S. v. Green,

another case that said there's no willfulness element in 841. Now, we can disagree. But, again, my argument to the

Court is he's an aider and abettor, therefore his intent is different than everybody else involved in that case because he's not the actual principal; he's aiding and abetting.

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I cited the case of U.S. v. Hernandez, Your Honor, which was a case out of Southern District of Florida, and if

the Court wants me to find it, I thought -- it's up to the Court, but I gave the case cite, very similar case where the Court in that jurisdiction allowed the defendant, very similar facts, to raise advice of counsel. After there's a mistrial the Government came back and dismissed all the defendants, including the people who pled guilty, because they had an

advice of counsel defense. So I cited that because it was interesting because I

thought the Department of Justice was taking completely opposite positions on basically the same exact case.

So when the critical moment of the case came to raise advice of counsel, and Mr. Garland and Mr. Samuel testified

there was ongoing plea negotiations, what changed Mr. Stoufflet's mind, and he testified to it, was when Mr. Samuel and Mr. Garland said: You're out, you have no defense, you can't raise advice of counsel, we believe the Government's correct, let's not wait till the judge rules. That's what induced him to plead guilty, was that wrong advice, and

significant, because he never wanted to plead guilty at all. Mr. Garland just testified that he was reluctant.

Mr. Samuel read e-mails and testified that Mr. Stoufflet never wanted to plead guilty, he was very reluctant. And had Mr. Samuel had -- could go back in time, he would have just said

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let's go to trial because it's obvious that Mr. Stoufflet wanted that trial.

So the critical moment Mr. Samuel, as much as I regard him as a great lawyer -- and you know what? Great lawyers do make mistakes and those mistakes sometimes affect the people they represent and that's what happened here.

So for close assistance of counsel, and again it ties to the ineffectiveness, I don't think it could be said that he

had close assistance of counsel when it came to the critical question in the case. And you know what, Your Honor? The Court ruled eventually that the Government is wrong, that there is specific intent and there is a willfulness requirement. That was your ruling.

Now, the Government is going to argue, well, that was

for Dr. Smith, that had nothing to do with Mr. Stoufflet. It's clear in the caption of your order and it doesn't change what the ruling says. I think the Court can read its own ruling and know why you ruled a certain way and who it applied to. But it talked about 841 being a specific intent crime. That's why the Government now wants to argue, well, it was a novel issue so

now Mr. Samuel can't be -- said he gave the wrong advice because now he knows the Court ruled against them.

The other part of the equation -- and these are parts of equation. Totality of the circumstances is -- not just one factor is more important than the other, the Court can just

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look at it and decide, you know, what stands out here. Mr. Stoufflet alleges that this wasn't voluntary, and I guess

he says that Mr. Garland pressured him. I think Mr. Stoufflet feels that he was under a great

deal of stress. He had this business he ran. It was all taken away from him based on things that he believed he did appropriately and based on lawyers' advice, his corporate lawyers, these healthcare lawyers, these law firms, these

places that, you know, he paid lots of money to who said, look, here's how you do these things, it's not illegal, it's a gray area.

So when the moment came he was under a lot of heavy stress. He felt that he was told again that he didn't have a defense and he had nowhere to turn and so he pled guilty. And

that's what his thinking at the time was, was that it wasn't voluntary, that he felt like he had no choice but to enter a guilty plea and he very reluctantly did that.

I have tried to tell this Court, I did in my motion, that Mr. Stoufflet and I may diverge at this point, but what he told the Court at the plea colloquy wasn't a lie, other than, I

guess, the fact that he was satisfied with his counsel. What the Government alleges basically was true, that

he did do these things, but he had a defense to it because he relied on his lawyers. So maybe some of the things the Government said may be questionably false. I tended to agree

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that everything that was stated was the truth but Mr. Stoufflet had a defense. So when he stood up here and testified to the

Court he was being truthful, that he was pleading guilty and he admitted the facts as presented to the Court. Mr. Garland stood up and told the Court during that plea that this was a complex case, that Mr. Stoufflet had to have aided and abetted and, you know, consciously agree with the doctors to commit this crime.

So what's a knowing and voluntary plea -- and someone in Mr. Stoufflet's position is under a great deal of stress, I mean an inordinate amount of pressure, that in and of itself can make it involuntary. He testified he felt very pressured into pleading guilty. And I know Mr. Samuel and Mr. Garland are going to disagree with that.

Now, the Government's going to argue about judicial resources and these resources being wasted. Now, he had private counsel at the outset so there's no money that was wasted there. The Government's investigation has been finished for a long time. Mr. Stoufflet's ability to have a jury trial shouldn't be based on the fact that the Government is all of a

sudden going to be out some money. Our Government's known to spend a lot of money on a lot of wasteful things. Mr. Stoufflet having a jury trial is not wasteful.

He's saying to the Court, look, I want to withdraw my guilty plea, let's go to trial next week, I'm ready to go,

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let's do this. He's the one who's -- literally his neck is hanging

out there because his plea agreement has a certain cap in it. That is gone. He told this Court he's willing to go to prison for the next 25 to 30 years and that's what he's risking. The ultimate risk, the ultimate cost -- that's why these judicial resources is inconsequential. The risk weighs to Mr. Christopher Stoufflet. He's putting his life out there,

his life on the line to go forward and say: Prosecute me, I want to have a trial, I want the Government to prove their case, let's do it.

When the system was founded a couple hundred years ago, the question of these resources by the Government prosecuting somebody never came into play. This is his liberty

that we're talking about. I understand he pled guilty. I understand the Government's argument if you let him withdraw, then everybody else should be allowed to withdraw. Well, this is a very unique situation in this case.

The Government's argued prejudice is another part of the factor. Now, in this type of case there's no fading

memories of witnesses, there's no long-lost eyewitnesses. This is mostly -- I mean, this isn't a whodunit. This is mostly some testimony by some lawyers, by the agent, who, obviously, I mean, he was testifying to some statistics and numbers very well, hasn't forgotten anything about this case. This is

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pretty much a document type of case. There's no missing witnesses. If any witnesses are missing, it's going to be on

behalf of Mr. Stoufflet, who may have trouble getting lawyers who have left law firms and have gone on to other places to come testify at his behalf. So if there's any delay, I guess, you know, it would hurt Mr. Stoufflet more than anything.

And I want the Court to understand that the delay isn't 11-1/2 months. I was appointed, I guess sometime in

December, and for me to get acquainted with some of the case took me a few months. I asked the Court for a continuance a couple of times because this is an enormous case and I had no idea what I was getting myself into. And so I needed some time to ferret out some arguments and try to think it through and determine what we had here.

And in addition to the delay, Mr. Stoufflet was never told he ever had a right to withdraw his guilty plea. We stood up here before the Court to plead guilty, the Court told him he didn't have a right to withdraw the plea, he didn't have a right to an appeal.

Don Samuel testified to the Court that Mr. Stoufflet

knew he wanted to do something but he didn't know what it was. He wanted to have a trial. He was never told about anything to withdraw a plea. I believe that e-mail would reflect, and Mr. Samuel testified, until, I think, August 2008, Mr. Samuel and Mr. Garland were still his lawyers. They were working

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alongside him. Neither one of them ever said, Chris, you can file a motion to withdraw your plea, not until August of '08.

So I understand the Government's argument it's late, but it's not necessarily the way it should be looked at, that there's this huge delay. The delay is sort of induced by Mr. Samuel, who wrote to him in an e-mail -- when Mr. Stoufflet was concerned that he was going to miss out on his opportunity to, what he says, tell the truth, I take to mean have a trial, he

wrote an e-mail to Don Samuel, is this going to affect me. Mr. Samuel wrote back the doctors going to trial is not going to affect your ability to withdraw your plea.

That's when these magic words came up and then he decided that he must do something. But Don Samuel kind of induced him to even delay it even longer, it's not going to

affect you. Again, Chris Stoufflet is relying on his lawyers. What else is he supposed to do?

You're right, I don't have an Eleventh Circuit case that says a long delay is not prejudice to the Government. But it's not the actual months that the Court needs to look at, if you read those cases closely, like U.S. v. Brehm.

U.S. v. Brehm was a case where the Government negotiated a plea with the defendant and in negotiating they stopped investigating the case early on. And then when the defendant decided I want to withdraw the plea, Government said, wait a minute, we stopped our investigation of the crime

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because you agreed to plead guilty. That was the prejudice to the Government, because they stopped their investigation. It's

not just because there's a delay, it's not the months that count; it's what the Government loses during those months.

In Chris Stoufflet's case they haven't lost anything at all in the months that have gone by by waiting for this hearing to occur. There is no evidence from the agent, I know the burden is on me, but the agent didn't testify that he

didn't know anything or had no recollection of a lot of these issues in the case. To the contrary, they still know everything. There's former testimony from transcripts. This case has been tried, the Court heard it. No one -- there's no disappearing witnesses. So it's not the delay; it's what happens during that delay, what is the Government losing out

on? So I think, Your Honor, that we can show a fair and

just reason. I think we've shown that, that Mr. Stoufflet was given the wrong advice at the critical moment and he made the wrong choice by pleading guilty when he should have had a trial.

Again, it's not a high burden, it's just a fair and just reason should be liberally construed to the defendant and you can analyze it through those four factors. Actually through the three factors. You can turn to prejudice later on after we meet the three.

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But he gave you a lot of reasons. He wants to have a jury trial. What's more fair and just than that? He felt that

he was railroaded. That's his word and I think what he means is he felt that everything came crumbling down on him all at once after he hired all of these attorneys before he was indicted and then all of a sudden he's indicted.

I mean, if those lawyers told him to keep operating that business and it wasn't a problem, aren't those lawyers

co-conspirators of him also? I mean it's just -- it smells real bad, this whole case, all around for everybody, especially for Mr. Stoufflet.

You know, the Government's concerned about the ethical -- the criticalness of Mr. Stoufflet's statements, but he's the one who's being prosecuted and he's the one who's

looking at a significant amount of time in prison. As far as ineffectiveness, Your Honor, I've cited the

law in my motions. Again, I think I was able to kind of breeze through it here in my summation. I think the Court understands that issue is the critical issue on whether advice of counsel can be raised.

Christopher Stoufflet spent the bulk of his life trying to do right, building a company and doing the right thing. He invests his employees, he did what anybody in our country would love to do, is being an entrepreneur, and he did it. And he contacted the right lawyers to get the information

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he needed. The Government wants to characterize it he was buying advice. He wasn't buying advice. He contacts the top

lawyers in the country, Mr. Garland said that. Those lawyers have an ethical duty to tell him what's right and what's wrong. There's no such thing as buying advice. Well, there may be but they wouldn't be working at those top law firms. That's not where he would go for the top advice. Mr. Samuel made it clear that this wasn't just a fly-by-night law firm that he went to

speak to. These were the top firms in the country. So he followed the advice and at the time of him

building this company, the laws were not clear. The laws weren't clear. I cited in one of my -- in my initial motion that it wasn't until 2008 till the Ryan Haight law was passed about online pharmacies being illegal.

This was very, very gray area law and he ends up being indicted. So he's only trying to rectify this injustice. And I know he made the decision to plead guilty and that falls on his shoulders. It was just a bad decision that day based on a lot of different aggravating factors going on all around. It was a bad, bad decision for him and a wrong decision. And

that's all he's telling the Court, it was a wrong decision, and there's a lot of reasons he's provided as to why he should be allowed to withdraw.

Basically his life has become a tragedy. Here he was at the highest of highs, working on a high level, doing what he

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believed to be the right thing in running a business, and the Government just cuts him to his knees and indicts him, while

he's listening to his lawyers telling him it's okay. If the Government wants to talk about what effect a

guilty -- withdrawing a guilty plea would have here, what about what effect that relying on your lawyers is not viable anymore? Where does that leave our country? You can't listen to your lawyers and, if you do, you risk the run [sic] of being

indicted? I think, Your Honor, it's clear and I think

Mr. Stoufflet should be allowed to withdraw his plea. Thank you.

THE COURT: Thank you. We are going to take a 20-minute break, after which I am going to enter a decision in

this case. Thank you.(Recess, 3:27 p.m. to 3:54 p.m.) THE COURT: Thank you, please be seated. Let the

record reflect the following. The Court having conducted an evidentiary hearing on

the Defendant's motion to withdraw his guilty plea; and the

Court having weighed and considered the Defendant's legal argument that he should be allowed to withdraw his guilty plea because of ineffective assistance of counsel; and the Court having also weighed and considered whether there is a fair and just reason for allowing the Defendant to withdraw his guilty

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plea; and the Court having weighed and considered the testimony of both the Defendant and his former attorneys, Don Samuel and

Ed Garland, regarding the Defendant's motion to withdraw his plea of guilty; and the Court having weighed and considered the testimony of the agent to whom this case was assigned; and the Court having read and considered all of the exhibits tendered into evidence by both the Defendant and the Government; and the Court having read and considered in advance of this hearing the

briefs submitted by the parties in support of and in opposition to the motion; and the Court having weighed and considered the totality of the circumstances surrounding the Defendant's guilty plea and the advice he received from counsel prior to entering his plea of guilty; and the Court having weighed, considered, and applied the four-prong test enunciated by the

Eleventh Circuit Court of Appeals in the case of the United States of America v. Robert Brehm; and the Court having weighed and considered the merits and demerits of the respective positions taken by both the Government and the Defendant; and the Court having reviewed and considered certain pertinent aspects of the Defendant's plea transcript which relate to

matters at issue in this case; and the Court having read and considered the plea agreement the Defendant entered into with the Government; and the Court having applied the law applicable thereto, including the cases relied upon and cited by counsel, as well as the law governing the credibility of the witnesses

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and the weight to be given their testimony; and the Court having given little weight and credit to the testimony of the

Defendant; and the Court having given considerable weight and credit to the testimony of attorneys Ed Garland and Don Samuel; and the Court having heard oral argument of counsel, the Court hereby finds in favor of the Government and against the Defendant because the Defendant has failed to show by a preponderance of the evidence under either standard that his

attorneys were ineffective or that there was a just and fair reason for allowing him to withdraw his guilty plea.

The Court hereby instructs counsel for the Government to prepare a proposed order for the Court's signature that reflects findings of facts and conclusions of law consistent with the Court's ruling. Said proposed findings of facts and

conclusions of law are to be reviewed by counsel for the Defendant prior to their submission to the Court to ensure the accuracy of the facts recited therein.

Mr. Chartash, when will you and Mr. Sommerfeld be able to submit proposed findings and facts and conclusions of law consistent with the Court's ruling?

MR. CHARTASH: Three weeks, Your Honor? THE COURT: Okay. I want you to allow counsel for

the Defendant to review those only as to the accuracy of the facts on which you rely.

MR. CHARTASH: Yes, Your Honor.

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THE COURT: If there's any disagreement, then I want you all to submit separate proposed findings of facts and

conclusions of law consistent with this Court's ruling. MR. CHARTASH: Yes, Your Honor. THE COURT: With that we'll be in recess. Good day

and thank you. (Proceedings concluded at 4:00 p.m.)

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C E R T I F I C A T E

UNITED STATES DISTRICT COURT:NORTHERN DISTRICT OF GEORGIA:

I hereby certify that the foregoing pages, 1 through 87, are a true and correct copy of the proceedings in the case aforesaid.

This the 13th day of October, 2009.

Amanda Lohnaas Amanda Lohnaas, CCR-B-580, RMR, CRROfficial Court ReporterUnited States District Court