motion for immediate court intervention 07-30-07

8/14/2019 Motion For Immediate Court Intervention 07-30-07

1/41

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA : CRIMINAL INDICTMENT

: NO. 1:06-CR-337

V. :

: MAGISTRATE

CHRISTOPHER STOUFFLET : NO. 1:07-MJ-854

TROY SOBERT :

VLADIMIR ANDRIES, M.D. :

THU ANH HOANG, M.D. :

STEVEN DANIEL HOLLIS,M.D. :

AHSAN U. RASHID,M.D., and :

ANDRE D. SMITH, M.D. :

MOTION FOR IMMEDIATE

COURT INTERVENTION TO

MONITOR AND LIMIT THE

EXECUTION OF THE SEARCH

WARRANT AUTHORIZED

ON JULY 25, 2007

The Defendant, Christopher Stoufflet, moves the court to immediately

direct the government and all its agents to refrain from examining any of the

contents of the computer server seized on July 27, 2007 and shows the court

the following:

1. Christopher Stoufflet and six other individuals were indicted almostexactly one year ago in a federal indictment alleging that the

Case 1:06-cr-00337-CC-JFK Document 189 Filed 07/30/2007 Page 1 of 13


2/41

2

defendant and others engaged in an unlawful internet pharmacy

operation at some point prior to the summer of 1999 through 2003.

2. At no time has there been any allegation during the lengthyinvestigation of this case, or during any post-indictment proceedings,

that there has been any obstruction of justice or destruction of

evidence on the part of any defendant.

3. On Friday, July 27, 2007, Magistrate Baverman authorized theexecution of a search warrant to seize a computer server that was used

by the company during the time that the company was in operation.

4. The government did not inform the Magistrate that in August, 2001,the government seized computers being used by the company at that

time, (all of which information, it is believed, was transferred on to

the computer seized on July 28, 2007) and following a Rule 41(g)

motion, was directed to return the computer to the company by

Magistrate Scofield. (Exhibit 1 transcript of Rule 41(g) hearing).

5. The government did not inform the Magistrate that the server containsthousands of documents, emails, and other information that has no

relevance whatsoever with the current case. The Magistrate was also

not informed that the computer remained the property of the

defendant, Christopher Stoufflet, long after the company ceased all



3/41

3

operations and that he continued to use the computer for other

purposes after the company ceased all operations in 2003.

6. The government did not inform Magistrate Baverman that throughoutthe course of the companys existence, the principals, including three

of the co-defendants in this case, engaged in a continuous dialogue

with lawyers to discuss the legality of their companys activities,

including several lawyers at Kilpatrick Stockton (Atlanta, including

Craig Bertschi, Phyllis Granade, Ralph Gaskins and investigator

Gerald Jones), Arent Fox (Washington, D.C. firm which had several

lawyers working on this matter, including Allison Shuren, Anthony

Pavel, Jeffrey Gray, Alan Reider and Robert Waters), Chilivis

Cochran (particularly Tom Bever), Gillen, Parker, Withers (Buddy

Parker and Craig Gillen), Jerry Froelich, Bruce Maloy, Melvin

Hewitt, Darrin Traub, Jeff Cunningham (Seyfarth Shaw), and others.

A majority of the communications between these lawyers and the

defendants were in the form of email messages and attachments to

email communications. It is no secret to the government that the

advice of counsel defense is a potential defense that may be raised by

the defense at trial. In fact, the government has filed a motion with

the court requesting that the defense be required to announce whether



4/41

4

it will rely on this defense at trial (despite the absence of any rule of

procedure, or precedent requiring pretrial disclosure of the

defendants theory of defense). The defense has expressly told the

prosecutors that a decision whether to proceed on an advice of counsel

defense has still not been made and that any documents that are

required to be disclosed pursuant to Rule 16 and the Local Rules of

this court, will be disclosed in a timely manner. Apparently not

satisfied with the timetable set forth in Rule 16 and the Local Rules,

the government decided to simply seize the documents under the

authority of a search warrant.

7. The government did not tell the Magistrate that through the issuanceof grand jury subpoenas, including a subpoena issued in the summer

of 2005, and another subpoena issued in late 2003, various company

records, including all correspondence etc., were produced to the

grand jury by the company. (Exhibit 2)

The search warrant that was obtained by the government has resulted in

the seizure of a computer server that has the capacity to contain millions of

pages of documents, records, photographs, personal correspondence,

calendars, journals (both personal diaries and company journals), sales



5/41

5

records, recipes, games, music and everything else that can and is contained

on a computer. The government has offered no information in the search

warrant, and this court has provided no limits, on what the government may

examine and study during the course of its execution of the search warrant.

In fact, the execution of the search warrant will now last for months as the

agents examine every file that is contained on the computer. There is no

search protocol contained in the warrant and no method by which the

government is directed to limit the time of its search of the computer, or its

examination of documents or records which are not within the scope of the

items to be seized paragraph.

Indeed, the notion of a to be seized attachment on a search warrant

for a computer is a non sequitur. The entire computer and all of its contents

have been seized. The to be seized attachment, therefore to the extent

that it limits what information contained on the computer may be seized

has already been completely disregarded. Thus, the to be seized

attachment provides no limitation on what the government can do with the

computer. What the search warrant fails to limit is what can be examined, or

studied, or copied, or shared among different agencies and law enforcement

personnel. Nor is there any limit to the length of time that the government

can keep the original or the copies that it will make on the mirror image.



6/41

6

It is no secret to the lawyers and the court that once the government gains

control of the computer, its ability to investigate its contents are not

constrained by any time limitations. For weeks, or months, the forensic

agents, and the investigative agents can examine whatever they choose to

examine. Evidence that is discovered that is not within the four corners of

the to be seized paragraphs will be conveniently described as plain view

discovery despite the absence of any inadvertence to the discovery.

Even information that is not used at trial, and thus not subject to a motion

to suppress, should be shielded from government eyes. The government has

no right to examine at length every communication written by an employee

of the company to his or her lover or spouse. The government agents have

no right to look at each employees Internet search history to determine what

sites each employee examined over the course of the years that the computer

was in operation. Communications between employees, or between the

principals of the company about their conversations with lawyers, or about

their plans for the future, or about how they plan to increase profits, or spend

profits, or about how any other personal matter, are not subject to seizure.

Yet, they have all been seized and are subject to being examined for an

indefinite period of time.



7/41

7

Without any limitations on what the government can do, now that it has

the computer in its possession, there is no method by which this court can

protect the privacy rights of individuals whose private communications (to

say nothing of privileged communications) are contained on the computer.

The governments anticipated response this is no different than the

search of any office where private letters or irrelevant communications

and records are examined by searching agents is inapt. In the search of a

company, the agents simply dont have the time to review at any length

obviously irrelevant documents. The agents can look for a second,

determine that the document is irrelevant, and by necessity, must move on.

When a computer is seized, however, the governments examination of

irrelevant documents has no time constraint. The agents can spend hours

examining the letters that Chris Stoufflet wrote to his father and his other

family members, to determine if there is a hint of guilty knowledge in his

communications. And if a document is found that has a passage or two that

can be used in cross-examination, the plain view doctrine is used to justify

the search. And again, it is not just evidence that the defendant seeks to

protect in this motion. It is his right to privacy, regardless of the evidentiary

value of the information that is reviewed. Once the computer is seized, it is

copied and neverreturned, thus enabling the government, or any law



8/41

8

enforcement agent to review the information on the computer from now until

the end of time.

The Governments Offer To Utilize a Taint Team

The government has offered to utilize a taint team to examine all the

emails to ensure that no attorney-client information is disclosed to the trial

lawyers. Given the number of lawyers and the extent to which their advice

was shared between the company officials, it is unlikely that a taint team

comprised of the prosecuting trial attorneys colleagues can adequately

protect the defendants rights. Moreover, the defense simply does not

believe that a taint team comprised of assistant United States attorneys in the

same office as the trial lawyers in this case can provide to the defendants the

protection that they are entitled to under the Sixth Amendment. The fox is

simply not the appropriate guardian of this hen house. See, In re Grand Jury

Subpoenas 04-124-03, 454 F.3d 511 (6th

Cir. 2006) (grand jury subpoena

does not take precedence over a defendants right to prevent disclosure of

attorney-client privileged material; government offer to utilize a taint team

rejected as solution to attorney-client privilege disclosures); United States v.

SDI Future Health, Inc., 464 F.Supp.2d 1027 (D.Nev. 2006) (discussing

pitfalls of taint team procedure).



9/41

9

In addition, the use of a taint team does not ensure that privileged

material will not, in fact, be revealed. There is no formality to membership

on the taint team. Members are not sworn by the court to confidentiality.

Members of the taint team will presumably spend virtually every day, side-

by-side with the prosecutors. It is only through some informal,

unenforceable assurance of good faith that the court and the defendant are

assured that his privileged communications will remain privileged vis--vis

the trial prosecutors. And, of course, it is a virtual certainty that these

privileged materials will notremain privileged vis--vis every other person,

for every other purpose that the taint team decides is appropriate.

It is ironic that this same prosecutors office that demands a strict

adherence to the absence of the appearance of a conflict brushes such

concerns aside when it comes to a review of a defendants privileged

communications. See United States v. Campbell, --- F.3d --- (11th

Cir.

2007).

The Defendants Proposal

The defense proposes that the government be required to suspend all

efforts at reviewing the contents of the computer immediately. The defense

would like the opportunity to review the contents of the hard drive that was



10/41

10

seized and more fully particularize this motion (a mirror image hard drive

can be prepared by government forensic agents in a matter of hours that will

preserve the integrity of the computer that was seized). Once the defense

can inventory what is contained on the computer, it may be possible to

submit a plan that will allow the parties to agree on a submission. Indeed,

had the government simply issued a subpoena, rather than sought a search

warrant, much of the information it sought would have been provided

(again).

Though there is a nascent body of case law developing on the method by

which computers should be searched and examined by the government, this

area of the law is still far from quick. Nevertheless, some cases have been

decided that demand that the government limit its search of computers to

protect the privacy rights of the people who used the computer. See

generally United States v. Carey, 172 F.3d 1268 (10th

Cir. 1999); United

States v. Vilar, 2007 WL 1075041 (S.D.N.Y. April 4, 2007); United States v.

Syphers, 296 F.Supp.2d 50 (D.N.H. 2003) (limiting the length of time that

the police may examine contents of computer, thus eliminating the

possibility that government will retain mirrored hard drive for years while

continuing its search for evidence); United States v. Grimmett, 2004 WL

3171788 (D.Kan. 2005) (same); United States v. Brunette, 76 F.Supp.2d 30



11/41

11

(D.Me. 1999)(same); United States v. Triumph Capital Gropu, Inc., 211

F.R.D. 31 (D.Conn. 2002). A more sophisticated approach, and an approach

that the defendant urges the court to take in this case was set forth inIn re

Search of 2817 W. West End, 321 F.Supp.2d 953 (N.D.Ill. 2004). In West

End, the court decided that a continuing monitoring of the search by the

court of the activities of the government was necessary in order to ensure

that the government did not engaged in the type of wall-to-wall,

rummaging, limitless search that the Particularity Clause of the Fourth

Amendment forbids.

At the present time, the defendant simply urges the court to ensure that

the parties maintain the status quo and allow the defendant an opportunity to

review what has been seized, and then to make a more detailed proposal

about what should be disclosed to the government.



12/41

12

This 30th

day of July, 2007.

RESPECTFULLY SUBMITTED,

GARLAND, SAMUEL & LOEB, P.C.

Respectfully submitted,

_____________________________

DONALD F. SAMUEL

Ga. State Bar #624475

Garland, Samuel & Loeb, P.C.3151 Maple Drive, NE

Atlanta, Georgia 30305

404-262-2225

Fax 404-365-5041

[email protected]



13/41

13

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA : CRIMINAL INDICTMENT

:

V. : NO. 1:06-CR-337

:

CHRISTOPHER STOUFFLET :

TROY SOBERT :

VLADIMIR ANDRIES, M.D. :

THU ANH HOANG, M.D. :

STEVEN DANIEL HOLLIS,M.D. :

AHSAN U. RASHID,M.D., and :

ANDRE D. SMITH, M.D. :

I hereby certify that I have this date served the within and foregoing

Motion for Immediate Court Intervention to Monitor and Limit the

Execution of the Search Warrant Authorized on July 25, 2007which will

automatically send email notification of such filing to the attorneys of

record.

This the 30th

day of July, 2007.

GARLAND, SAMUEL & LOEB, P.C.

DONALD F. SAMUELGa. State Bar #624475



14/41

Case 1:06-cr-00337-CC-JFK Document 189-2 Filed 07/30/2007 Page 1 of 19


15/41



16/41



17/41



18/41



19/41


20/41



21/41



22/41



23/41



24/41



25/41



26/41



27/41



28/41



29/41



30/41



31/41



32/41



33/41



34/41



35/41



36/41



37/41



38/41



39/41



40/41



41/41


motion for immediate court intervention 07-30-07

Documents