post-conviction relief motion

8/2/2019 POST-CONVICTION RELIEF MOTION

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F I L E D I N C L E R K ' S O F F I C EU.S.D.C . Atlanta

U N I T E D S T A T E S D I S T R I C T C O U R TN O R T H E R N D I S T R I C T OF G E O R G I A

A T L A N T A D I V I S I O NA P R 2 3 2 0 1 2

U N I T E D S T A T E S OF A M E R I C A C R I M I N A L QASE N O S .l : 0 8 - C R - 0 8 2 - l - C Cl : 0 6 - C R - 3 3 7 - l - C C

V .

C H R I S T O P H E R S T O U F F L E T

M E M O R A N D U M O F L A W IN SUPPORT OFPETITION T O V A C A T E AND SET ASIDE CONVICTION [28 U.S.C. $ 22551

McCarty v. United States expands the notion of "voluntariness" toinclude the concept that the defendant must have an"understanding ofthe essential elements of the crime charged,including the requirement of specific intent," in order for a plea inthe Federal Courts to be valid under [Rule] 11 . . . .

Henderson v . Morgan, 426 U .S . 637, 653-54 (1976) (intemal punctuation omitted).

Rule 11 requires a court to ensure that a pleading defendant is both informed andunderstanding of the elements and nature ofhis crime, including whether "specific" criminalintent is on element ofhis offense. Fed. R. C r i m . P. 11(b)(1)(G). Here, counsel recommended,and the Court accepted petitioner's guilty plea before the Court had decided whether "specificintent" was a required element. In other words, petitioner was allowed to plead guilty to a yet-to-be defined offense.

After ruling in a co-defendant's case that specific intent was, indeed, an essential element,petitioner moved to withdraw his plea, since the ruling enabled his prepared advice-of-counseldefense. The Court rejected the motion as untimely, and held that petitioner had made a"strategic decision" to plead regardless o f the elements o f the offense. The Court ruled, that is,that petitioner made an informed decision to make an uninformed plea.

INTRODUCTION AND S U M M A R Y O F A R G U M E N T

Case 1:08-cr-00082-CC-JFK Document 104-1 Filed 04/23/12 Page 1 of 12


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Both counsel and the Court made constitutionally significant errors, respectively, inadvising and then accepting a guilty plea from a defendant who was not informed o f the elementsand nature ofhis offense. Neither petitioner nor his counsel knew the nature ofhis offense - andcould not have known - because the Court had not yet decided what its elements were. Hadpetitioner been informed before or during his plea colloquy that "specific" intent was a keyelement, he would not have pled guilty and would have defended at trial by asserting his preparedadvice-of-counsel defense.

New counsel was appointed for appeal, who declined petitioner's entreaties to appealthese errors, and who instead f i led anAnders brief. W i t h no errors having been appealed, theconviction was affirmed.

Petitioner seeks habeas relief on the basis that trial counsel was constitutionally deficientin recommending that petitioner plead guilty to an undefined crime, and in not objecting whenthe Court nevertheless accepted such a plea. Counsel was further deficient for his prejudicialdelay in filing a motion under Rule 11 (d) to withdraw the plea. Appellate counsel wasconstitutionally deficient for fa i l ing to assert the Court's Rule 11 errors - or any errors - onappeal. Petitioner, who is now in federal custody, timely asks the Court to vacate his plea andconviction for reasons stated.

F A C T U A L AND P R O C E D U R A L S U M M A R Y

Petitioner and five professionals operated an internet pharmacy from 2001-03, whereweight-loss medications were dispensed solely on the basis of on-line medical questionnaires.Because a growing number of state medical boards were disapproving o f this practice, andbecause federal drug laws were keyed to the evolving state-approved practices, petitioner relied

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o n the advice of expert counsel for staying legally compliant.When petitioner and his colleagues were nevertheless indicted in 2006, they asserted

advice-of-counsel as a defense to criminal intent. Just before trial, the Govemment moved inlimine to exclude this defense, arguing that 21 U . S . C . 841 was a strict liability offense - or oneo f "general intenf to which lack of mens rea, or "specific intent," was irrelevant. Under thegovernment's theory, guilt flowed from the mere doing of the proscribed acts (here, internetprescribing), regardless of intent to break the law. [Doc. No. 217 at 9] ("The Govemment isrequired to show only that Stoufflet or the defendant-doctors must know that he is in factperforming an act, whether or not he knows that the act has been criminalized by statute . . .[advice-of-counsel] is not available as a defense to the general-intent crimes with which he ischarged.") (footnote omitted).

O n the eve of trial, with the Government's motion still undecided and a take-it-or-leave-itplea offer about to expire, petitioner pled guilty to one count under Section 841 and a relatedmoney-laundering count under 18 U . S . C . 1957.

The Court conducted a plea hearing under Rule 11. Although petitioner's counselexpressed dismay about the still uncertain element of intent, petitioner nevertheless persisted inhis plea so as to avoid greater potential criminal exposure were the Court to define the elementso f the offense without mens rea. [Plea Tr. at 29-30] The Court thereupon accepted the plea andfactual basis as sufficient for a "general intenf offense. [Id. at 31.]

Then, three days after accepting petitioner's plea, the Court overmled the same in liminemotion in a co-defendant's case. The Court raled that Section 841 was, in fact, a crime of"specific intent", to which advice-of-counsel was a viable defense. [Do c . No . 225 at 2] ("[T]he

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crimes charged are specific intent crimes, making the exclusion of good faith defensesinappropriate.")

When petitioner leamed of the Court's raling, he began a succession of e-mails, lettersand calls to counsel urging him to move his plea's withdrawal. Exhibit " A . " In one e-mailpetitioner protested that he had "resort[ed] to basically begging" to get counsel to challenge theplea. Id. After months of equivocation ~ during which co-defendants were tried ~ counselultimately withdrew from the case and new counsel f i le d the motion to withdraw under Rule11(d).

The Court held an evidentiary hearing on the withdrawal motion. Former counseltestified that he "had never been so confiised by an area of the law" when urging petitioner toplead, but that he stood by his recommendation as a "strategic decision" necessitated by thepotential that the advice-of-counsel defense could be barred. [Withdrawal Tr. at 71; May 20,2009].

The Court denied the motion on the basis that the plea was a deliberate "strategicdecision" to plead ~ regardless of "intent" - in order to secure a plea deal. The Court also mledthat the motion was untimely. [Doc. 48 at 16]

A R G U M E N T

A . Counsel's failure to determine the elements and legal defenses to thecrime he was chargedwith defendingwas not "objectivelyreasonable"under Strickland v. Washington, 466 U . S . 668 (1984).

"I can tell you that I have never been so confused by an area of the law. , . .[w]ithin the same circuits you can find cases going both ways.. . . [ A] l l we weredoing was preparing the advice of counsel defense.... [I]f he rales against us [on"intent"] we are dead in the water and our deadline to plead guilty is going to bebefore Judge Cooper rales.

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T r. Of Plea Withdrawal H r ' g . at 30-40; M ay 20, 2009. (Excerpts of counsel's testimony).Counsel can be forgiven for being confused by Eleventh Cir cu i t law ~ at least initially.

Eleventh Cir cu i t case law is indeed contradictory on the meaning and requirement of "intenf asan element of 21 U . S . C . 841. Some panels and district courts require only "general intent"(i.e., actus reas but not mens reas). Others make "specific intent" an essential element (i.e., bothactus reas and mens rea). Compare, e.g. United States v. Green, 296 Fed. A p p x . 811 (11* Cir .2008) ("[T]he statutory language makes no reference with willfulness, nor intent to violate thelaw, as a mens rea requirement.") (Citing 21 U . S . C . 841), with United States v. Hargrove, 424Fed. A p p x . 926, 929 (11* Cir . 2011) ("We have recognized an 'innocent intent' defense inrespect to Section 841 (a)(1) charges. . . . Innocent intent is not an affirmative defense, but ameans o f negating the mens rea element o f the offense.") (Citing United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18).

G i v e n such judicial discord over a key element of a major crime, counsel's in i t ia lbemusement is not unreasonable. What is inexcusable, rather, is his choice to remain confused.See Herring V. Estelle, 491 F.2d 125, 128 (5*> Cir . 1974) ("[I]f the quality of counsel's servicefalls below a certain minimum level, the client's guilty plea cannot be knowing and voluntary . . .[a]nd a lawyer who is not familiar with the facts and law relevant to his client's case cannot meetthat required minimum level.") (emphasis added). Reasonably competent counsel would have

f i le d a motion in limine (as the govemment later did) to get an early mling from the Court on the"intent" and advice-of-counsel issues. Instead, counsel committed to an " a l l i n " advice ofcounsel defense without knowing whether the Court would let it in.

A s a result, counsel invited the prosecution to "jam" the defense with a Hobson's choice

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on the eve o f trial by moving in limine after it was too late to consider other defensive options. Areasonably competent architect would not have built an expensive home without knowingwhether the so i l would support it, especially in a neighborhood known for quicksand. The samegoes for reasonably competent counsel.

B. Counsel's failure at the Rule 11 hearing to ensure an explanationofthe elements and nature of the offense was prejudicially unreasonable.

"It is simply not fair to prosecute someone for a crime that has not been defined until thejudicial decision that sends him to j a i l . " Sorich v. United States, 555 U . S . 1204, 1206 (2009)(Scalia, dissenting, from denial of cert.) Rule 11(b) provides that "[bjefore the Court accepts aplea of guilty.. . the Court must inform the defendant of, and determine that the defendantunderstands . . . the nature of each charge to which the defendant is pleading." Fed. R. C r i m . P.11(b)(1)(G). SeeLajano-Perez, 21A F.3d at 224 ("Rule 11's requirement that the defendant[]understand the 'nature o f the charge against [him] refers to the elements o f the offense.") As theSupreme Court enjoined, "a defendant must have an understanding of the essential elements ofthe crime charged, including the element of specific intent, in order for a plea in the federalcourts to be valid under [Rule] 11." Henderson 426 U . S . at 653-54, {citing McCarthy v. UnitedStates, 394 U . S . 459, 471 (1969) (intemal punctuation omitted).

Moreover, "[w]hen mens rea is such a critical element of an offense, the district court

must determine . . . that the defendant understands the nature of the mental element." Sierra v.Govt, of Canal Zone, 5A6V.2d 11, 80 (5* Cir . 1977). {Citing Henderson, supra; McCarthy,supra). Further, "[a]t a minimum, the defendant must understand the ' c r i t i ca l ' and 'essential'elements o f the offense to which he or she pleads guilty." United States v. Valdes, 362 F.3d 909

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(6* Cir . 2004) (citing Bousley v. United States, 523 U . S . 614, 618-19 (1998).The Court accepted petitioner's plea without once addressing the element of "intent". Tr.

O f Gui l ty Plea Proc. At 13-14 (March 4, 2008). Indeed, the Court did not enumerate any ofthe"critical or essential" elements. Id. It merely read "the gist" of the superseding information andasked petitioner ifhe understood the nature o f the charges. Id. At 14 ("Having read to you thegist of the two counts to which you are pleading guilty do you understand the nature o f thecharges to which you are pleading guilty?") Nowhere in the plea colloquy did the Court explainthat some form of "intent" was even an element of the crime, let alone inform the petitioner thatin order to be guilty of violating Section 841, he had to have had "specific" criminal intent, andnot just "general intenf.

Even after petitioner's counsel made it clear, following the allocuted factual basis, thatthe plea was based only upon the "intent to do the acts as set forth in the incident," the Courtfailed to inform counsel or petitioner that merely "intent to do the acts" was insufficient for anoffense that required intent to also break the law. Id. At 29-31. (See McCarthy, 394 U . S . at 470)("Remarks ofthis nature cast considerable doubt... that petitioner pleaded guilty with fiillawareness ofthe nature o f the charge.")

Thus, not only did the Court f a i l to inform or ensure petitioner's understanding of theelement of "intent", the Court accepted a factual basis insufficient to support a "specific intent"

offense. Fed. R. C r i m . P. 11(3). See United States v. Lopez, 907 F.2d 1096, Noo, (11*' C i r .1990) ("The purpose ofthis requirement is to protect a defendant who mistakenly believes hisconduct constitutes the criminal offense to which he is pleading.") (Citing McCarthy, 394 U . S . at467).

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Later on, in denying petitioner's motion to witlidraw liis plea, the Court, respectfully,justified it's omissions by finding that petitioner had made a "strategic decision" to foregoknowledge of "intenf in exchange for a plea deal. Yet, there is nothing that authorizes adefendant to waive (or "strategically" forego) Rules 11(b)(1)(G) or (3). A n d when the Court readto defendant each o f the rights he was waiving by pleading guilty, waiver of the right to beinformed and understand the nature o f the charge was not among them. Likewise, petitioner wasnot told that he was waiving the right to a factualbasis that supported his plea. Tr. Of Gui l ty

Plea Proc. At 9-13.Petitioner did not - and legally could not - waive the right to be informed o f the nature of

the crime to which he was pleading guilty. Merely recasting a waiver as a "strategic decision"changes nothing. SeeMcCarthy, 394 U . S . at 472 ("It is, therefore, not too much to require thatbefore sentencing defendants to years o f imprisonment, district judges take the few minutesnecessary to inform them of their rights and to determine whether they understand the action theyare taking.")

Thus, counsel's failure to seek an in limine definition was compounded, i f not exceeded,by counsel's failure at the Rule 11 hearing either to insist upon the Court's definition of the leveland type of "intenf required, or to object when the Court accepted the plea without havingprovided one. Had counsel had a basic awareness of Rules 11(b)(1)(G) and (3), he could havemade up for the in limine omission by obtaining the Court's definition of "intent" before decidingwhether to persist in recommending the guilty plea. Counsel's performance was not objectivelyreasonable and it resulted in the petitioner's consummation of a guilty plea he would not haveotherwise made. Indeed, petitioner tried to repudiate the plea once he leamed the "intent"

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element o f the charge, as discussed below.C . Counsel prejudicially delayed moving the withdrawal of petitioner's

plea followingthe Court's post-plea clarificationofthe elementofintent.

Rule 11(d) allows a defendant to withdraw his plea ifhe "can show a fair and just reasonfor requesting the withdrawal." Fed. R. C r i m . P. 11(d)(2)(B). A "fair and just reason isdetermined by the totality o f the circumstances, considering the following factors: (1) whetherclose assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3)

whether judicial resources would be conserved; and (4) whether the govemment would beprejudiced. . . ." United States v. Buckles, 843 F.2d 469, 471 (11* C i r . 1988).

When the Court, three days after accepting petitioner's plea, undermined the plea's legaland factual basis by mling that "specific intenf was indeed an element of Section 841, to whichadvice-of-counsel was a defense, counsel either failed to leam o f it or failed to appreciate itssignificance for petitioner's plea. Petitioner did leam o f it, however, and began to badger counselto do something. Petitioner's efforts are documents in a series of e-mails, calls and letters. SeeE x h . A.

For months counsel temporized until finally, six months after the plea, counsel withdrewwithout filing a Rule 11(d) motion. The Court appointed new counsel who, after reasonabledelay while becoming acquainted with the complexity o f the case, filed the withdrawal motionunder Rule 11(d)(2)(B). The Court conducted an evidentiary hearing and took testimony frompetitioner and former counsel.

The Court then denied the withdrawal motion, making legal and factual findings againstpetitioner on all o f the Buckles factors. [Doc. No. 48] The Court placed particular emphasis on

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the third and forth factors, i.e., the waste ofjudicial resources and prejudicial delay to thegovemment.

To the extent that the Court's fmdings on these factors were justified, they are a directresult of counsel's procrastination, vacillation, and misperception o f the significance o f the"specific intent" mling immediately post-plea. Petitioner did everj/thing in his power to convincecounsel to file an expeditious withdrawal motion. See E x h . A.

The Court's findings on the first two Buckles factors, however, were clearly erroneous

and an abuse of discretion. While petitioner had "close" counsel, he had anything but his "closeassistance". It is clear from the exhibited communications and counsel's testimony excerptedabove that he was confiised, discouraged and generally bumed out over the case following theplea. More importantly, the same misapprehension of Rule 11's requirements carried over tocounsel's approach to a plea withdrawal. He quite clearly (and erroneously) believed thatpetitioner's "strategic decision" to plead in ignorance o f the nature of the offense was bindingand irrevocable regardless of the Court's subsequent "specific intent" mling.

The Court's "knowing and voluntary" Buckles finding was clearly erroneous and an abuseo f discretion. Because the Court had not yet mled, neither counsel nor petitioner could possiblyhave known the nature o f the "intenf element, or whether the Court would mle that "intent" wasan element at all . The Court itself, respectfiilly,doomed the validity of the plea by not informingpetitioner o f this element or ensuring his understanding. Sierra, 546 F.2d at 80 ("When mens reais such a critical element of an offense, the Court must determine, on the record by personallyaddressing the defendant, that the defendant understands the nature o f the mental element."){Citing McCarthy and. Henderson); See also United States v. Lujano-Perez, 274 F.3d 219, 224

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(5* C i r . 2001 ("Rule 11's requirement that the defendants understand the 'nature of the offense'against them refer to the elements o f the offense.") (Citation omitted).

D. Appellate counsel declined to appeal the Court's Rule 11 errors - orany errors at all - and instead filed anAnders brief endorsing therationale that petitioner's "strategic decision"to plead had waived hisright to be informed and understand the elements of his charge.

Without once speaking, meeting or conversing with petitioner, appointed appellatecounsel rejected his entreaties to appeal the errors o f the Court in accepting petitioner's bl indplea. Indeed, appellate counsel refused to appeal anything, including timely objections by trialcounsel that application of Section 841 against petitioner denied Fair Notice and was in violationofthe Separation of Powers Doctrine. Instead, counsel wrote avi. Anders brief essentiallydefending the actions ofthe trial counsel and the Court. It could easily be mistaken for a briefwritten by the prosecution.

Yet, l ike trial counsel and the Court, appellate counsel failed to perceive the clear error inthe proceedings below, that is , that petitioner was advised to plead to an undefined charge, andthe court accepted the plea on the basis that petitioner had "strategically decided" to forego theright to be informed.

Petitioner complains that this type of "advocacy" by appellate counsel was worse than noadvocacy at all , and that appellate counsel's failure to challenge a single error below, given thesecircumstances, was constitutionally deficient assistance of counsel. As a direct result of appellatecounsel's failures - or, indeed, as a result of counsel's defense of the errors petitioner'sconviction was affirmed.

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CONCLUSIONPetitioner should not have been advised or allowed to consummate his guilty plea in

ignorance ofthe elements and nature ofhis offense. Had he known that "specific intenf was arequired element to which his prepared advice-of-counsel was a viable defense, he would nothave offered or consummated his plea. These were errors o f both counsel and, respectfiilly theCourt.

Because the Court had not decided which type of "intenf would be the law o f this case,and because Eleventh Cir cu i t law was irreconcilably contradictory, petitioner's plea was per seuninformed. Not until three days afl:er accepting petitioner's plea did the Court for the first timedefine the elements ofthe offense.

Y et the Court sustained the plea when petitioner repudiated it, on the theory thatpetitioner had "strategically decided" to waive knowing whether or what type of "intent" was anelement ofhis offense.

F o r the reasons stated herein, petitioner requests that his conviction be vacated.Respectfiilly submitted, this the / / day o f A p r i l , 2012.

C H R I S T O P H E R S T O U F F L E T , Pro Se

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