Governments Omnibus Responce To Defedants Motion To Dismiss 03-14-2007

Case 1:06-cr-00337-CC-JFK Document 149 Filed 03/14/2007 Page 1 of 39
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA :

: CRIMINAL ACTION
v. :
: NO. 1:06-CR-337-CC
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. :
OMNIBUS RESPONSE TO DEFENDANTS'

MOTIONS TO DISMISS, TO STRIKE SURPLUSAGE, AND
TO REVEAL INFORMATION BEFORE THE GRAND JURY
Comes now the United States of America, by David E. Nahmias,
United States Attorney, and Randy S. Chartash and Lawrence R.
Sommerfeld, Assistant United States Attorneys for the Northern
District of Georgia, and files this OMNIBUS RESPONSE TO DEFENDANTS'
MOTIONS TO DISMISS, TO STRIKE SURPLUSAGE, AND TO REVEAL INFORMATION
BEFORE THE GRAND JURY as follows:
BACKGROUND
Defendants were indicted by a federal Grand Jury sitting in
the Northern District of Georgia on August 8, 2006 [Doc. 1]. The
Indictment alleges, generally, that Defendants Stoufflet and Sobert
were proprietors of businesses which sold controlled substances and
other prescription drugs to customers on demand. (See Indictment
[Doc. 1] ¶¶ 18, 19, 27-32, 34-38.) Defendants Andries, Hoang,

Hollis, Rashid, and Smith are each physicians who were employed at
various times by Stoufflet and Sobert’s businesses to use their
state medical licenses and DEA registration numbers to facilitate
the distribution of the drugs requested by customers. (Id. ¶¶ 20-
33.) The doctors who distributed the controlled substances did not
meet nor speak with the customers, nor was customer information
confirmed, other than the validity of the customers’ payment
information. (Id.) Put simply, the Indictment alleges that the
Defendants each were part of a scheme to circumvent the drug laws
of the United States, enabling customers to order controlled
substances and other prescription drugs without a legitimate
medical purpose and outside of the usual course of professional
practice. (Id. ¶¶ 18-38.)
In particular, the Indictment charges each of the Defendants
with conspiring to distribute controlled substances in violation of
21 U.S.C. § 841(a)(1). (Indictment [Doc. 1], Count 1.) Defendants
Stoufflet, Sobert, Smith, and Rashid are also charged with
substantive counts of distribution of a controlled substance.
(Id., Counts 2-4.) In addition, Defendants Stoufflet and Sobert
are charged with money laundering and violations of the Food, Drug,
and Cosmetic Act. (Id., Counts 5-51.)
Prior to the pretrial conference held January 24, 2007, the
Defendants filed the following motions to which the Court has
ordered a written response: Hoang’s Motion to Dismiss and Request
2
To Review the Legal Instructions Provided to the Grand Jury [Doc.
76]; Rashid’s Motion to Dismiss Indictment [Doc. 79]; Sobert’s
Motion to Strike Surplusage and in Limine [Doc. 82]; Smith’s Motion
to Dismiss Indictment [Doc. 93]; and Stoufflet’s Amended Motion to
Dismiss Indictment Pursuant to Fed. R. Crim. P. 12(b)(2) [Doc. 96].
Although different individual Defendants filed each of these
motions, each of the Defendants adopted all of these motions,
pursuant to the opt-out procedure established by the Court during
the pretrial conference. This filing responds to all of the
Defendants’ pretrial motions to which a written response was
requested by the Court.
DISCUSSION
I. DEFENDANTS MISCONSTRUE THE INDICTMENT AND THE CHARGES AGAINST

THEM.
Most of the Defendants’ arguments are based on a fundamental
misconstruction of the Indictment and a misunderstanding of the
charges. The Defendants’ motions to dismiss ignore longstanding
precedent confirming that the Controlled Substances Act, 21, U.S.C.
§ 801 et seq., outlaws a physician’s distribution of controlled
substances outside of a legitimate medical purpose and the usual
course of professional practice, see, e.g., United States v. Moore,
423 U.S. 122, 96 S. Ct. 335 (1975), and instead focus on the
3
defendants’ violations of 21 C.F.R. § 1306.04 and state law and
regulations. (See Stoufflet Mot. to Dismiss [Doc. 96], at 9-24;
Rashid Mot. to Dismiss [Doc. 79], at 2-5; Smith Mot. to Dismiss
[Doc. 93], at 1-2; Hoang Mot. to Dismiss and for Disclosure of
Grand Jury Materials [Doc. 76], at 2-5.) Because the Defendants
revisit this premise so often in various guises, it is helpful to
set the record straight at the outset.
Plainly stated, the Indictment charges the Defendants with
multiple violations of the Controlled Substances Act (“CSA”). The
Indictment does not allege that the Defendants violated the CSA
because they violated § 1306.04. The Indictment charges violations
of both the statute and the regulatory provision. The fact that
the elements necessary to prove the criminal offenses also
encompass facts sufficient to show a violation of the federal
regulation does not invalidate the Indictment, nor does it evidence
some effort by the government to “bootstrap” a regulatory violation
into a criminal offense. Rather, the applicability of § 1306.04 to
the present case shows that the Defendants were put on notice that
their activities were illegal through not only the statute and the
case law interpreting it, but also by a specific regulatory
provision.
The elements necessary for conviction under 21 U.S.C. § 841(a)
are: (1) a knowing or intentional attempt to distribute or dispense
(2) a substance known to be controlled (3) in an unauthorized
4
manner. United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir.
1978)1; United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).
With respect to physicians, a dispensation is unauthorized if the
charged conduct falls outside the boundaries of the physician's
professional practice. Id.; see also Moore, 423 U.S. at 124
(“registered physicians can be prosecuted under § 841 when their
activities fall outside the usual course of professional
practice”); United States v. Tran Trong Cuong, 18 F.3d 1132, 1137
(4th Cir. 1994); United States v. Hayes, 595 F.2d 258, 259-60 (5th
Cir. 1979) (rejecting vagueness challenge, stating that § 1306.04
“merely restates the Court's conclusion in Moore”); United States
v. Limberopoulos, 26 F.3d 245, 249-50 (1st Cir. 1994) (under well-
established case law, CSA applies to physicians and pharmacists
dispensing drugs “outside the usual course of professional
practice”).
There are no specific guidelines to judge whether a physician
acted outside the bounds of professional practice. Instead, a
case-by-case analysis of evidence must be made to determine whether
a reasonable inference of guilt may be drawn from specific facts.
United States v. Singh, 54 F.3d 1182, 1187 (4th Cir. 1995); United
States v. August, 984 F.2d 705, 713 (6th Cir. 1992). The same
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
5
reasonableness standard applies to non-physicians who assist
physicians and pharmacists in violating the CSA. See United States
v. DeBoer, 966 F.2d 1066, 1068-69 (6th Cir. 1992) (rejecting CSA
vagueness claim by defendant who worked as a “manager and a
pharmacy technician” in conspiracy to illegally distribute
prescription cough syrup); United States v. Vamos, 797 F.2d 1146,
1153-54 (2d Cir. 1986) (nurse/office manager not free to
unreasonably rely on the judgment of her physician employer in
illegally distributing weight-loss drugs); United States v. Green,
511 F.2d 1062, 1070-71 (7th Cir. 1975) (sustaining conviction of
pharmacy’s part owner who was shown to be involved in conspiracy to
violate CSA).
Thus, although the Indictment describes a rather complex
system set up by the Defendants to ensure the timely delivery of
large quantities of controlled substances to numerous customers,
the conduct at issue and the laws that it violated are, at bottom,
fairly simple. With or without § 1306.04, the Defendants can be
held liable under the CSA for activities that amount to conduct
beyond the bounds of professional medical practice, or for aiding
and abetting those activities. Whether the Defendants’ conduct
breached those boundaries is a question of fact for the jury to
determine.
Bereft of support for any plausible arguments against the
validity of the Indictment, the Defendants turn to knocking down
6
straw men based on overemphasizing § 1306.04 and state laws and
regulations. The Defendants raise the following major contentions:
First, they claim that, despite longstanding precedent, the
criminal standards are somehow so vague as to rise to a
constitutional due process violation; second, they argue that the
government is attempting to criminalize a federal regulation, 21
C.F.R. § 1306.04; third, they complain that the government is
attempting to impose federal penalties for violations of state law
and regulations. As set out in greater detail below, none of these
arguments, nor any of the additional claims raised by the various
Defendants, stands up to scrutiny. The Defendants want to recast
their activities as practicing medicine through pathbreaking new
technologies. In reality, the conduct alleged in the Indictment
amounts to little more than plain old pill pushing.
II. THE STANDARD TO WHICH THE DEFENDANTS ARE HELD UNDER THE CSA IS
NEITHER COUNTER TO CONGRESSIONAL INTENT NOR
UNCONSTITUTIONALLY VAGUE.
Defendants’ motions decry the supposed vagueness of the
standard at issue and question whether Congress intended their
behavior to be prosecuted under the CSA. As well-established case
law sets out, the idea that doctors or individuals running a
pharmacy might be prosecuted for distributing controlled substances
outside the normal bounds of professional practice is nothing
7
particularly novel or of recent origin. The government addresses
the various facets of the defendants’ arguments below.
A. Well-Established Case Law Holds that Congress Intended

Drug-Dealing Physicians To be Liable Under the CSA.
Contrary to Defendants’ arguments, the CSA makes clear
Congress’s intent to outlaw the conduct alleged here. First, as
set out above, the Indictment properly charges the Defendants under
the CSA, while § 1306.04 merely restates CSA case law. As the
Supreme Court has found, the overriding intent of Congress in
enacting the CSA is well known. Congress sought to address
problems of drug abuse, drug trafficking, and – particularly
applicable here – the diversion of drugs from legitimate channels
to illegitimate channels. See Moore, 423 U.S. at 134-35.
Construing the CSA’s physician registration provisions to allow
doctors to dispense drugs without regard to the constraints in the
rest of the statute would, the Supreme Court found,
constitute a sharp departure from prior laws. But there

is no indication that Congress had any such intent.
Physicians who stepped outside the bounds of professional
practice could be prosecuted under the Harrison Act
(Narcotics) of 1914, 38 Stat. 785, the predecessor of the
CSA.
Moore, 423 U.S. at 132; see also Part I, above. Therefore, the
standard discussed in Moore related the longstanding intent of
8
Congress to criminalize drug distribution outside legitimate
medical practice.
The Defendants’ arguments that Congress never intended to
criminalize the violation of § 1306.04 ignores the reality of this
case law and the language of the Indictment. The defendants were
charged under the CSA, and Congress meant the CSA to apply to
physicians and their conspirators who “step[] outside the bounds of
professional practice,” in the words of Moore. 423 U.S. at 132.
The Indictment alleges just such conduct.2
The Congressional call for more specific regulations regarding
certain narcotics must be seen in the context of its history. As
Moore explains, for years a specific controversy raged “over the
extent to which narcotic drugs may be administered to an addict
solely because he is an addict.” Moore, 423 U.S. at 143. As a
result of this controversy, some physicians avoided treating
addicts altogether for fear of prosecution. Id. at 144. Concerned
that the law might discourage certain bona fide medical treatments,
Congress stepped in by asking the Secretary of Health, Education,
2
The defendants contend that a violation of § 1306.04
cannot be a felony because it would be ridiculous to consider
every violation under Title 21 of the CFR to be a felony. See
Stoufflet Mot. to Dismiss, at 23-24. The government does not
argue that all violations of Title 21 are federal felonies.
Violating the CSA, however, as the Indictment alleges, is a
federal felony. See Moore, 423 U.S. at 124; Hayes, 595 F.2d at
259-60.
9
and Welfare to “clarify for the medical profession . . . the extent
to which they may safely go in treating narcotic addicts as
patients.” Id. (quotation, citation omitted).
The present case does not involve the type of drugs that
prompted Congress to call for a regulatory resolution to the
addiction treatment controversy. Rather, it involves the well-
established standard discussed in Moore and relied upon in
subsequent cases such as those cited above. Had Congress believed
at any time in the nearly 30 years since the Supreme Court decided
Moore that the Supreme Court’s interpretation was incorrect, it
could have amended the CSA or demanded additional regulations be
promulgated as it did with regard to the treatment of narcotics
addicts. The fact that Congress has let findings of Moore stand
for the intervening decades indicates that the Court came to the
correct conclusion.
B. The Standard Expressed in § 1306.04 and Relevant Case Law

Is Not Unconstitutionally Vague.
The Defendants posit that the allegations in the Indictment
are unconstitutionally vague as applied to this case. (Stoufflet
Mot. to Dismiss [Doc. 96], at 17-21; Rashid Mot. to Dismiss [Doc.
79], at 3-5; Smith Mot. to Dismiss [Doc. 93], at 1-2.) To avoid a
due process violation, a criminal statute must "define the criminal
offense with sufficient definiteness that ordinary people can
10
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." Kolender v.
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855 (1983). As applied to
the defendants, the CSA is neither unconstitutionally vague, nor an
unconstitutional delegation of legislative power. Moreover, the
Defendants' activities were well within the limits of the CSA.
The Defendants' main constitutional argument, that the
standard for determining a violation of the CSA is
unconstitutionally vague as applied to this case, is without merit.
Even prior to Moore it was unanimously held that physicians who
were registrants could be liable under 21 U.S.C. § 841 if they
prescribed controlled substances outside the course of professional
practice. See United States v. Larson, 507 F.2d 385, 386 (9th Cir.
1974); United States v. Badia, 490 F.2d 296 (1st Cir. 1973); United
States v. Jobe, 487 F.2d 268, 269 (10th Cir. 1973); United States
v. Bartee, 479 F.2d 484 (10th Cir. 1973); United States v. Collier,
478 F.2d 268 (5th Cir. 1973) (specifically rejecting vagueness
challenge); United States v. Carroll, 518 F.2d 187 (6th Cir. 1975);
United States v. Green, 511 F.2d 1062 (7th Cir. 1975).3 In Moore,
the Supreme Court held that physicians can be prosecuted under §
841 “when their activities fall outside the usual course of
3
A divided D.C. Circuit Court broke with this precedent,
leading the Supreme Court to finalize the matter in Moore. See
United States v. Moore, 505 F.2d 426 (D.C. Cir. 1974), rev’d, 423
U.S. 122 (1975).
11
professional practice.” 423 U.S. at 124. The relevant DEA
regulation also states that a prescription for a controlled
substance must be issued “for a legitimate medical purpose by an
individual practitioner acting in the usual course of his
professional practice.” 21 C.F.R. § 1306.04(a). As set out above,
the Indictment properly charges the defendants under the CSA, while
§ 1306.04 merely restates CSA case law. Defendants cite no
decisions that have held the CSA unconstitutionally vague as
applied to doctors in the decades since the statute was enacted.
More recent Circuit case law confirms that “a licensed
physician who prescribes controlled substances outside the bounds
of his professional medical practice is subject to prosecution and
is no different than a ‘large-scale pusher.’” Tran Trong Cuong, 18
F.3d at 1137 (quoting Moore, 423 U.S. at 143). The Defendants
demand the impossible when they imply that Congress, in order to
criminalize drug distribution outside legitimate medical practice,
would need to specifically define the entire realm of professional
conduct. As the Singh court noted:
[t]here are no specific guidelines concerning what is

required to support a conclusion that an accused acted
outside the usual course of professional practice.
Rather, the courts must engage in a case-by-case analysis
of evidence to determine whether a reasonable inference
of guilt may be drawn from specific facts.
12
Singh, 54 F.3d at 1187 (quoting United States v. August, 984 F.2d
705, 713 (6th Cir.1992) (citations omitted)).
Finding examples of such “specific facts” is not difficult,
further undercutting the Defendants’ argument that the standard is
too vague to follow or provided insufficient notice. Moore itself
actually presents a short list of trial evidence “sufficient for
the jury to find that the respondent’s conduct exceeded the bounds
of ‘professional practice.’” Moore, 423 U.S. at 142. Moreover, it
closely parallels some of the conduct alleged here:
[The defendant] gave inadequate physical examinations or

none at all. He ignored the results of the tests he did
make. He did not give methadone at the clinic and took
no precautions against its misuse and diversion. He did
not regulate the dosage at all, prescribing as much and
as frequently as the patient demanded. He did not charge
for medical services rendered, but graduated his fee
according to the number of tablets desired.
Id. at 142-43. Circuit courts across the country have found
prescriptions had been illegally issued based on similar evidence,
including: (1) prescriptions issued without any prior physical
examination of the patient;4 (2) prescriptions issued after an
4
See, e.g., United States v. Kaplan, 895 F.2d 618, 620
(9th Cir.1990); accord United States v. Word, 806 F.2d 658, 663
(6th Cir. 1986); United States v. Smurthwaite, 590 F.2d 889, 890
(10th Cir. 1979); United States v. Roya, 574 F.2d 386, 389 (7th
Cir. 1978); United States v. Fellman, 549 F.2d 181, 182 (10th
Cir. 1977); United States v. Rosenberg, 515 F.2d 190, 192 (9th
Cir. 1975); United States v. Green, 511 F.2d 1062, 1066 (7th Cir.
1975); United States v. Bartee, 479 F.2d 484, 485 (10th Cir.
1973); United States v. Warren, 453 F.2d 738, 741 (2d Cir. 1972);
13
inadequate examination;5 (3) charging patients only if a
prescription is written;6 (4) prescriptions issued for a particular
controlled substance that the patient either named or described;7
(5) prescriptions issued in a fictitious name or in a name other
than that of the patient who was present at the time;8 (6)
physicians aware that the drugs were not to be used for therapeutic
or medical purposes at the time the prescription was written;9 (7)
a physician writing an inordinate number of prescriptions for
controlled substances overall or to individual patients or both;10
(8) a physician writing new prescriptions before the old
Brown v. United States, 250 F.2d 745, 745 (5th Cir. 1958); United
States v. Brandenburg, 155 F.2d 110, 112-13 (3d Cir. 1946).
5
See, e.g., United States v. Varma, 691 F.2d 460, 462-64
(10th Cir. 1982) (citing failure of physician to perform adequate
physical examination); United States v. Kirk, 584 F.2d 773, 783
(6th Cir. 1978) (examining only weight and blood pressure);
United States v. Rosen, 582 F.2d 1032, 1034 n.7 (5th Cir. 1978)
(no medical history taken).
6
See United States v. Kirk, 584 F.2d 773, 779 (6th Cir.
1978) (charging patient only if prescription written).
7
See, e.g., Varma, 691 F.2d at 462 (prescribing drugs that
a patient wanted); Smurthwaite, 590 F.2d at 890; Bartee, 479 F.2d
at 485-86. See also Kirk, 584 F.2d at 783 (giving the patient a
choice of drugs).
8
See, e.g., Smurthwaite, 590 F.2d at 890; Roya, 574 F.2d
at 389.
9
See, e.g., Smurthwaite, 590 F.2d at 890 (prescribing
weight-loss drugs for partying and not for weight control).
10
See Kirk, 584 F.2d at 778 (issuing an unusually large
quantity of prescriptions).
14
prescriptions would have run out;11 (9) a physician failing to
maintain patient records for prescriptions prescribed,12 or keeping
false records;13 and (10) charging for office visits based on the
amount of controlled substances prescribed or charging a high
price.14 See also United States v. Zwick, 413 F. Supp. 113, 115-16
(N.D. Ohio 1976) (civil case where court imposed minimum medical
standards for bariatric practice, including emphasis on
individualized treatment before prescribing diet drugs).
Many of these decisions, like the instant case, involved
distributions of controlled substance weight-loss medications.
See, e.g., Smurthwaite, 590 F.2d at 890. Reading through such
extensive case law leads to the inescapable conclusion that the
type of conduct alleged in this Indictment is such that a
reasonable person could easily find the Defendants to have acted
beyond the bounds of medical practice. Even if the CSA, related
case law, and § 1306.04 do not outline all of the potential ways in
11
See Smurthwaite, 590 F.2d at 890 (prescribing a
different controlled substance before prior prescription of
another substance ran out); Kirk, 584 F.2d at 778 (prescribing
drugs three or four times a week to the same patient); Roya, 574
F.2d at 389 (issuing a second prescription within three days of a
previous prescription for a month's supply).
12
See United States v. Larson, 722 F.2d 139, 142 (5th Cir.
1983) (failing to produce records indicates lack of compliance
with customary medical practice).
13
See Smurthwaite, 590 F.2d at 891.
14
See Word, 806 F.2d at 664 (charging $200 to $1,000 per
prescription).
15
which illegitimate prescriptions can be recognized, the conduct
here, authorizing thousands of orders of controlled substance drugs
to people Defendants never saw, touched, examined, talked to, or
had any reason to believe were who they claimed to be, lies far
from any possible vague grey area.
Defendants argue that their use of the Internet somehow
obscured from them the illegality of distributing controlled
substances outside of any legitimate medical purpose or in the
usual course of professional practice. (See, e.g., Rashid Mot. to
Dismiss [Doc. 79], at 4-5). However, there is nothing new about
the operative facts nor anything new about the use of the Internet
that made the Defendants’ conduct suddenly illegal. That they
operated through the Internet rather than a back-alley does not
legitimize their illegal behavior or create doubt about its
illegality. Other courts have considered and affirmed convictions
of doctors under the CSA for illegally prescribing drugs over the
Internet. In United States v. Nelson, 383 F.3d 1227 (10th Cir.
2004), for example, the Tenth Circuit affirmed the conviction of
Dr. Nelson for conspiracy to distribute controlled substances under
21 U.S.C. § 846. Nelson was charged under the conspiracy provision
"with committing the substantive offense proscribed under 21 U.S.C.
§ 841(a)(1)." Id. at 1233. The appeal concerned a question of the
sufficiency of the evidence, but Nelson's illegal conduct largely
mirrors Defendants’ actions here. Id. at 1228. Working with an
16
"internet pharmacy," Nelson approved 90-95% of prescription drug
requests that he reviewed and "did so without ever examining his
purported patient." Id.
In a further attempt to move distribution of drugs over the
Internet outside the scope of the CSA, Defendants cite pending
federal legislation. (Rashid Mot. to Dismiss [Doc. 79], at 3 &
n.2., Ex. A) The bill proposes an amendment to the Food, Drug, and
Cosmetic Act (FDCA). (Id., Ex. A § 2.) According to Defendants,
Congress's consideration of this bill somehow indicates that
Congress has not yet evinced at intent to prohibit the conduct
here. (See Rashid Mot. to Dismiss [Doc. 79], at 3, 6.)
The Supreme Court has admonished against drawing inferences
about an agency's authority from the consideration, rejection, or
adoption of legislation. See, e.g., United States v. Wise, 370
U.S. 405, 410-11, 82 S. Ct. 1354 (1962) ("several equally tenable
inferences could be drawn from the failure of the Congress to adopt
[a statutory amendment].., including the inference that the
existing legislation already incorporated the offered change");
United States v. New York Tel. Co., 434 U.S. 159, 177 n.25, 98 S.
Ct. 364 (1977) ("We decline to infer from a congressional grant
authority under these circumstances that such authority was
previously lacking."). That Congress is considering a bill that may
potentially establish further standards under the FDCA for the
17
practice of medicine over the Internet has no bearing on the
application of the CSA to the Defendants' conduct.
Defendants' arguments that the CSA does not cover their
actions because they used the Internet to distribute drugs
fundamentally misunderstands the CSA. As discussed above, case law
confirms that Defendants’ conduct falls well within the type of
activity prohibited by the CSA. Because the Defendants cannot
meaningfully distinguish their conduct from that of doctors and
businesses convicted under the CSA in office or "brick-and-mortar"
settings, they focus on the technological medium they used to
violate the Act. This distinction makes no difference, however,
because the Internet did not change the substance of Defendants'
pill mill activity, but merely made it more ubiquitous. F o r
similar reasons, the defendants’ contentions that the “doctrine of
avoiding constitutional difficulties” and the rule of lenity
counsel against reading the CSA to outlaw their conduct falls flat.
(Stoufflet Mot. to Dismiss [Doc. 96], at 20-21; Rashid Mot. to
Dismiss [Doc. 79], at 3-5.) As the Supreme Court noted while
discarding a similar ambiguity argument in Moore:
The canon in favor of strict construction (of criminal

statutes) is not an inexorable command to override common
sense and evident statutory purpose. . . . Nor does it
demand that a statute be given the “narrowest meaning”;
it is satisfied if the words are given their fair meaning
in accord with the manifest intent of the lawmakers.
18
Moore, 423 U.S. at 145 (quoting United States v. Brown, 333 U.S.
18, 25-26, 68 S. Ct. 376 (1948)). With that, the Supreme Court
found that “the clear intent of Congress” controlled, and that the
CSA was not sufficiently ambiguous to construe it in any other way
other than holding the defendant liable for distributing drugs
outside the bounds of professional medical practice. Id. As in
Moore, there are no “constitutional difficulties” to avoid in the
instant case, only questions of fact to be decided by a jury.
III. THE INDICTMENT DOES NOT HINGE ON STATE LAWS OR FEDERAL

REGULATIONS, NOR DOES IT ALLEGE THAT VIOLATIONS OF STATE LAWS
CONSTITUTE DIRECT VIOLATIONS OF FEDERAL LAW.
The Defendants argue that the government seeks to impose
federal felony penalties for violations of state laws and
regulations, and for violations of the CFR. (See Stoufflet Mot. to
Dismiss [Doc. 96], at 21-24; Smith Mot. to Dismiss [Doc. 93], at 1-
2.) The Defendants argue that it was not Congress’s intent to
transform state laws into federal felonies. Id., at 22-24. The
main problem with the Defendants’ argument is that the government
does not contend that state law violations necessarily evidence
violations of the CSA. As set out above, the Defendants are
charged under the federal drug statute. That statute, as courts
have held time and again, outlaws the distribution of controlled
substances when not dispensed as part of a legitimate medical
practice. See Parts I and II, above.
19
State laws and regulations, while not definitive under the
CSA, demonstrate the parameters of medical practice in different
parts of the country. As a mere example of state requirements upon
doctors and healthcare professionals before they may prescribe,
distribute, or dispense controlled substances, a Georgia provision
was set out in the Indictment (See Indictment [Doc. 1], ¶¶ 16-17.)
This example is merely illustrative of state medical laws and
regulations in the jurisdiction in which the Defendants’ business
operated and out of which the Defendant doctors distributed drugs.
The Defendants went far afield of medical standards when measured
against these state laws and regulations, belying any claim of good
faith reliance on such state standards. However, the Indictment
does not allege that violating state law creates a federal felony.
The validity of the Indictment does not depend upon whether the
Defendants violated state laws or regulations.15
Along the same lines, the Defendants argue that the government
seeks to penalize criminally the violation of a federal regulation,
21 C.F.R. § 1306.04. (See Stoufflet Mot. to Dismiss [Doc. 96], at
22-24.) However, as set out above, the Indictment plainly charges
15
The Defendants note that the Indictment refers to the
example Georgia regulation as “state law”. Regardless, because
the Indictment alleges a violation of 21 U.S.C. § 841 and does
not depend on whether the Defendants violated state law or
regulations, whether the example quoted is a statute or a
regulation makes no difference to the charges here. The
Defendants’ complaint is merely a straw man without any relevance
to the motions to dismiss.
20
the defendants with violations of the CSA as well as § 1306.04.
Like state laws, § 1306.04 reflects the usual course of medical
practice, but does not constitute directly the federal criminal
violation alleged here.
IV. THE CONTROLLED SUBSTANCES ACT DOES NOT UNCONSTITUTIONALLY

DELEGATE LEGISLATIVE AUTHORITY.
The Defendants’ contention that the Controlled Substances Act
unconstitutionally delegates legislative authority to the Attorney
General cannot withstand analysis.
The Defendants argue that the application of 21 C.F.R. §
1306.04 violates the non-delegation doctrine, apparently on the
premise that Congress cannot delegate the power to write criminal
statutes to the Attorney General. See Stoufflet Mot. to Dismiss,
at 24. The government does not argue that § 1306.04 has any
independent effect that alone makes the Defendants’ actions
criminal. As stated throughout this Opposition, the Defendants
were charged under the CSA, and the regulation merely restates case
law interpreting the CSA. See Parts I and II, above. Therefore,
the Defendants’ reliance on cases such as Smith v. Goguen, 415 U.S.
566, 575, 94 S. Ct. 1242 (1974), is misplaced. (See Stoufflet Mot.
to Dismiss [Doc. 96], at 24.) The CSA itself, rather than §
1306.04, furnishes the basis of criminal liability here.
21
Moreover, the CSA does not delegate lawmaking authority or the
power to define criminal conduct to the Attorney General.
Defendants cite Touby v. United States, 500 U.S. 160, 164-65, 111
S. Ct. 1752 (1991), see Stoufflet Mot. to Dismiss [Doc. 96], at 24,
where the Supreme Court rejected a defendant’s challenge, based on
the non-delegation doctrine, to the provision of the CSA that
authorizes the Attorney General to schedule controlled substances,
thus creating new criminal liability. While the Supreme Court
upheld the delegation in Touby, the case is nevertheless irrelevant
to the instant prosecution because this case does not rest on any
delegated lawmaking authority. Rather, the CSA itself defines the
criminal activity of which Defendants are accused.
In passing the CSA, Congress proscribed the unauthorized
distribution of controlled substances. See 21 U.S.C. § 841(a)(1).
Defendants' conduct in selling controlled substances to customers
with no consultation, no examination, no follow-up, and by allowing
customers to request the type, quantity, and strength of pills,
fell within the prohibition of the Controlled Substances Act. This
determination amounted to no more of a delegation of legislative
authority than any decision by the Attorney General to prosecute.
22
V. THE SUPREME COURT’S DECISION IN OREGON V. GONZALES DOES NOT

OVERRULE UNITED STATES V. MOORE, NOR OTHERWISE COUNSEL THE
DISMISSAL OF THIS CASE.
Defendant Stoufflet, joined by the other co-defendants, moves
to dismiss the Indictment under the recent ruling Gonzales v.
Oregon, 546 U.S. 243, 126 S. Ct. 904 (2006). (Stoufflet Mot. to
Dismiss [Doc 96], at 9-17). Defendants' interpretation of the
scope of the Supreme Court's ruling in Gonzales is overly broad.
This Court should not adopt such an interpretation and should
therefore deny Defendants’ motion to dismiss.
In Gonzales, the Supreme Court determined that the Attorney
General was not empowered to declare physician-assisted suicide
illegal under the Controlled Substance Act (“CSA”), when it was
explicitly permitted by Oregon law. 126 S. Ct. at 925. The
Defendants extrapolate from the narrow issue decided by the Court
and argue that the Attorney General does not have the authority to
declare an entire class of activity outside the course of
professional practice and therefore a criminal violation of the
CSA. However, the holding in Gonzales did not affect the validity
of the CSA's provisions or the regulations that are at issue in
this case.16 “The CSA creates a comprehensive, closed regulatory
16
The Supreme Court noted in Gonzales that it was not
deciding whether “deference would be warranted for an
interpretation issued by the Attorney General concerning matters
closer to his role under the CSA, namely preventing doctors from
engaging in illicit drug trafficking.” Gonzales, 126 S. Ct. at
922.
23
regime criminalizing the unauthorized manufacture, distribution,
dispensing, and possession of substances classified in any of the
Act’s five schedules.” Gonzales, 126 S. Ct. at 911 (citation
omitted). “Dispensing controlled substances without a valid
prescription, furthermore, is a federal crime.” Id. at 914
(citations omitted). A regulation promulgated under the CSA
“requires that every prescription for a controlled substance ‘be
issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional
practice.” Id. at 912 (quoting 21 C.F.R. § 1306.04(a)(2005)).
Under Gonzales, the government enforces the CSA in light of
the states’ regulation of the practice of medicine. Id. at 923.
However, the Supreme Court made clear that “Congress regulates
medical practice insofar as it bars doctors from using their
prescription-writing powers as a means to engage in illicit drug
dealing and trafficking as conventionally understood.” Id. at 923.
The CSA “bars doctors from peddling to patients who crave the drugs
for those prohibited uses.” Id. at 925 (referring to addiction and
recreational abuse, citing Moore, 423 U.S. at 135).
When the CSA first went into effect, there was a question as
to whether DEA registrants, that is, physicians, pharmacists, and
certain researchers, among others, could be prosecuted under
24
Sections 841's blanket prohibition, or whether they must be
prosecuted under Sections 842 and 843, which provide lesser
penalties. The Supreme Court answered this question in United
States v. Moore, 423 U.S. 122, 124, 96 S. Ct. 335 (1975), and held
that Section 841 applied by its terms to “any person.” 423 U.S. at
131. There is no exemption under Section 841 of doctors and
pharmacists for their activities which are not authorized by the
CSA. Id. at 131-32. The Court clarified that a DEA registrant can
only be prosecuted under Section 841 when his or her activities
fall outside the usual course of practice because the DEA only
licenses individuals to distribute prescriptions in their role as
physicians or practitioners. Id. at 141-43.
Defendants argue that Gonzales v. Oregon upsets the body of
case law in the lower courts because the Supreme Court has made new
statements regarding the relationship between state regulation of
medical practice and federal regulation of controlled substances.17
17
Over the years, many courts have held that violations
of generally accepted practices, often in the form of state
medical regulations, are relevant as proof of criminal liability
under 21 U.S.C. § 841. See, e.g., United States v. Vamos, 797
F.2d 1146, 1151 (2d Cir. 1986)(finding relevant to liability the
“prevailing standards of treatment” and “generally
accepted”medical practices); United States v. Varma, 691 F.2d
460, 464 (10th Cir. 1982) (citing to evidence that a physician
failed to conduct proper patient screenings and physical
examinations); United States v. Rosen, 582 F.2d 1032, 1035-36
(5th Cir. 1978) (noting a lack of “clearcut criteria” for
determining a violation of 21 U.S.C. § 841 for physicians, but
observing that certain examples of violations of medical
standards were recurrent in many cases); United States v.
Boettjer, 569 F.2d 1078, 1081 (9th Cir. 1978) (“the ‘usual
25
Gonzales v. Oregon does not disturb prior case law. The Supreme
Court cites Moore with approval in Gonzales. See 126 S. Ct. at 925.
The Supreme Court does not display the intention to upset its
holding in Moore or to question the case law in the lower courts
that followed from Moore.18 Thus, the ultimate decision of whether
a doctor’s conduct exceeded the bounds of professional practice is
decided by the jury. See Moore, 423 U.S. at 142-43 (holding that
“[t]he evidence presented at trial was sufficient for the jury to
find that respondent’s conduct exceeded bounds of ‘professional
practice,’” where “he gave inadequate physical examinations or none
at all,” ignored test results, “took no precautions against
[methadone’s] misuse and diversion,” “did not regulate the dosage
at all, prescribing as much and as frequently as the patient
demanded,” charged not for medical services but by “the number of
tablets desired,” and “acted as a large-scale ‘pusher’ not as a
physician”).
course’ standard itself imports considerations of medical

legitimacy and accepted medical standards”); United States v.
Rosenberg, 515 F.2d 190, 199-200 (9th Cir. 1975) (detailing
evidence that the defendant had failed to follow state
regulations on medical record-keeping and failed to provide
physical examinations, which were “proper professional
practice”).
18
The cases that have interpreted Gonzales v. Oregon have
all rejected the argument advanced by the defendant that United
States v. Moore is no longer good law. See United States v.
Feingold, 454 F.3d 1001 (9th Cir. 2006); United States v.
Prejean, 429 F. Supp. 2d 782 (E.D. La. 2006); United States v.
Edwin, 2006 WL 763653 (N.D. Ill. 2006).
26
The conduct alleged in the Indictment falls within the bounds
of the CSA to regulate illicit drug trafficking and dealing.
Gonzales does not provide a basis for dismissal of the indictment.
See United States v. Edwin, 2006 WL 763653 (N.D. Ill. 2006)(denying
defendant’s motion to dismiss indictment for distributing drugs not
for a legitimate medical purpose in the usual course of his
professional medical practice based on Gonzales, holding that
Gonzales did not invalidate federal regulation requiring
prescriptions for controlled substances to be issued for
“legitimate medical purpose” by an individual practitioner, finding
that Gonzales did not affect the validity of the CSA, citing 21
C.F.R. § 1306.04).
Further, as discussed above, the government has not here
issued a directive or regulation defining a controversial new
medical practice as illegal. Contrary to the Defendants’
assertions, the government does not seek through this case
additional power over the “doctor-patient relationship.” The
Indictment alleges facts that constitute violations of the CSA.
The government bases this view on the statutes and regulations
cited in the Indictment as well as the longstanding case law cited
herein. The central determination – whether the Defendants’
conduct indeed went beyond the usual course of medical practice –
is a factual issue for the jury to decide, not something the
Justice Department has unilaterally declared.
27
VI. COUNTS 5 THROUGH 51 OF THE INDICTMENT, CHARGING MONEY

LAUNDERING AND FOOD, DRUG, AND COSMETIC ACT VIOLATIONS, MUST
STAND.
Because Defendants’ other challenges fail, Counts 5-48, which
allege various money laundering violations, must also be upheld.
Further, because none of the Defendants challenge Counts 49-51
of the Indictment, these counts, alleging violations of the Food,
Drug, and Cosmetic Act, must stand.
VII. DEFENDANTS’ MOTION TO STRIKE SURPLUSAGE SHOULD BE DEFERRED

UNTIL AFTER EVIDENCE IS PRESENTED AT TRIAL, OR SUMMARILY
DENIED.
Defendants seek to strike a number of paragraphs of the
Indictment as surplusage. (Sobert’s Mot. to Strike Surplusage
(“Mot. to Strike”) [Doc. 82].)
As an initial matter, Defendants’ Motion to Strike Surplusage
should be deferred until after evidence is presented at trial. A
motion to strike alleged surplusage from an indictment is addressed
to the sound discretion of the Court. Fed. R. Crim. P. 7(d) (“Upon
the defendant’s motion, the court may strike surplusage from the
indictment”); United Sates v. Huppert, 917 F. 2d 507, 511 (11th
Cir. 1990) (reviewing district court’s decision to determine if
court abused its discretion in denying a motion to strike alleged
surplusage). Such a motion should not be granted unless the
allegations are irrelevant, inflammatory and prejudicial; a
28
difficult standard for a defendant to meet. Huppert, 917 F.2d at
511.
A motion to strike surplusage from an indictment should

not be granted “unless it is clear that the allegations
are not relevant to the charge and are inflammatory and
prejudicial....[T]his is a most ‘exacting standard.’”
United States v. Huppert, 917 F.2d 507, 511 (11th Cir.
1990) (quoting 1 Charles A. Wright, Federal Practice and
Procedure § 127 at 424-29 (1982)). Therefore, it is
proper to reserve ruling on a motion to strike surplusage
until the trial court has heard evidence that will
establish the relevance of the allegedly surplus
language....
United States v. Awan, 966 F.2d 1415, 1426 (11th Cir. 1992).
Indeed, statements of law can only become irrelevant or potentially
prejudicial if the Court were prepared to give contrary jury
instructions. United States v. Quinn, 401 F. Supp. 2d 80, 97-98
(D.D.C. 2005). We have not yet reached that stage of the trial.
Given the “exacting standard” that a defendant must meet to
warrant the granting of a motion to strike surplusage, this Court
should, at a minimum, reserve ruling on Defendants’ Motions until
the jury instruction stage of the trial. Indeed, because of the
length and detail in the Indictment, it is likely that the Court
will only present a summary of the allegations to the jury at the
start of the trial. The summary would not include the specific
paragraphs complained of by Defendants, thus, further lessening any
likelihood of prejudice.
Even were the Court to consider Defendants’ motions to strike
now, they should be denied because Defendants have failed to show
29
that the portions of the Indictment about which they complain are
irrelevant, unduly prejudicial, and inflammatory. Again, Rule 7(d)
has been strictly construed against striking surplusage.
See Huppert, 917 F.2d at 511; Awan, 966 F.2d at 1426. The
Government should be entitled to describe the charges in its
indictments in a manner that it sees fit.
Defendants first seek to strike paragraphs 16 and 17 of the
Indictment which provide a Georgia provision as an example of
requirements imposed by states “upon doctors and healthcare
professionals to take certain steps before they could prescribe,
distribute, or dispense controlled substances.” (Indictment [Doc.
1] ¶ 16.) Defendants complain that the statement that the Georgia
regulation provides an “example” is argumentative, and that the
characterization as “State Law” is misleading, in that the excerpt
is from a Georgia regulation. (Mot. to Strike, at 3.)
The Court has already granted in part the Defendants Motions
for a Bill of Particulars, requiring the United States to provide
other state laws and regulations it will rely upon at trial.
Because other state laws will be provided, characterizing the
Georgia regulation already set forth in the Indictment as an
“example” is neither argumentative nor misleading. Further, as
discussed above in Parts I through III, state laws and regulations,
while not dispositive, may be indicative the usual course of
professional practice and the Defendants’ knowledge thereof.
30
Accordingly, such regulations are not surplusage and are properly
included in the Indictment. In addition, because the allegations
against the Defendants are based on federal law, and not on state
provisions, whether statutory or regulatory, Defendants’ complaint
regarding the characterization of the provision provides no grounds
to strike. Statements of law can only become irrelevant or
potentially prejudicial if the Court were prepared to give
contrary jury instructions. Quinn, 401 F. Supp. 2d at 97-98. We
have not yet reached that stage of the trial. As it stands, the
statements are relevant and neither prejudicial nor inflammatory.
Therefore, they are not surplusage.
The balance of Defendants’ complaints regard paragraphs of the
Indictment which concern the Defendants profiting from their
illegal activity and which the Defendants assert are not strictly
elements of the crimes charged. (See Mot. to Strike, at 4-5.)
Defendants, however, have again failed to show that, strictly
construing the Indictment against striking surplusage, the portions
of the Indictment about which they complain are irrelevant, unduly
prejudicial, and inflammatory. See Huppert, 917 F.2d at 511; Awan,
966 F.2d at 1426. The Defendants motive and interest in
circumventing the drug laws, as well as their actions in
furtherance of the conspiracy are not irrelevant nor unfairly
prejudicial. Put simply, it is not for the Defendants to re-write
the Indictment as they would wish; to the extent there may be
31
portions of the Indictment which should not go back with the jury,
this issue may be revisited at trial with the benefit of a more
complete record. See United States v. Figueroa, 900 F.2d 1211,
1218 (8th Cir. 1990) (allegations neither irrelevant nor
inflammatory and prejudicial because closely paralleled evidence
addressed at trial); see also United States v. Scarpa, 913 F.2d
993, 1012 (2d Cir. 1990) (“if evidence of the allegation is
admissible and relevant to the charge, then regardless of how
prejudicial the language is, it may not be stricken”) (citation
omitted); United States v. Hill, 799 F. Supp. 86, 88-89 (D. Kan.
1992) (“If the language is information which the government hopes
to properly prove at trial, it cannot be considered surplusage no
matter how prejudicial it may be.”) (citation omitted).
Defendants’ Motion to Strike Surplusage and in Limine [Doc.
82] should be deferred to trial or summarily denied.
VIII. DEFENDANTS HAVE PROVIDED NO BASIS JUSTIFYING DISCLOSURE

OF GRAND JURY MATERIALS.
Defendant Hoang, joined by the other Defendants, requests
dismissal of the Indictment or disclosure of material presented
before the Grand Jury. (Hoang Mot. to Dismiss and Request to
Review the Legal Instructions Provided to the Grand Jury (“Mot. for
Grand Jury Materials”) [Doc. 76], at 2-5.) As noted by the
defense, Rule 6(e)(3)(E)(ii) requires that before otherwise secret
32
Grand Jury material may be disclosed, the defendant must show “that
a ground may exist to dismiss the indictment because of a matter
that occurred before the grand jury”. Fed. R. Crim. P.
6(e)(3)(E)(ii); Mot. for Grand Jury Materials, at 2. Because the
defense has made no showing that any dismissal would be warranted,
their motion for disclosure of Grand Jury materials must be denied.
Binding precedent in this Circuit makes clear that on a
defendant’s motion to dismiss an indictment, a district court may
not look beyond the face of the indictment and rule on the merits
of the charges pretrial. See United States v. Salman, 378 F.3d
1266, 1267-68 (11th Cir. 2004) (per curiam). The Salman court
relied upon long standing Eleventh Circuit precedent, stating that
"[t]here is no summary judgment procedure in criminal cases. Nor do
the rules provide for a pre-trial determination of sufficiency of
the evidence." Id. at 1268.
Grand jury proceedings are presumed to be regular and valid.
See United States v. Calandra, 414 U.S. 338, 345 (1974); Costello
v. United States, 350 U.S. 359, 363-64 (1956). “A defendant's
effort to obtain grand jury materials can only succeed with a
showing of ‘particularized need.’” United States v. Burke, 856 F.2d
1492, 1496 (11th Cir. 1988) (citation omitted); United States v.
Cole, 755 F.2d 748, 758 (11th Cir. 1985) (citation omitted).
In determining whether to dismiss an indictment for errors in
Grand Jury proceedings, a court must assess if the alleged
33
violation “‘substantially influenced the grand jury's decision to
indict,’ or if there [was] ‘grave doubt’ that the decision to
indict was free from the substantial influence of such violations.”
Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S. Ct.
2369 (1988) (quoting United States v. Mechanik, 475 U.S. 66, 78,
106 S. Ct. 938 (1986)) (applying Fed. R. Crim. P. 52(a) “harmless
error” standard where dismissal sought for nonconstitutional
error). Dismissal in these circumstances is warranted only when
prosecutorial misconduct significantly infringes on the Grand
Jury's ability to render an independent judgment. See id. at
255-56. Before invoking this power, however, a court must find the
alleged prosecutorial misconduct actually prejudiced the defendant.
Absent proof the misconduct “substantially influenced the grand
jury's decision to indict,” a dismissal is not warranted. See Nova
Scotia, 487 U.S. at 256.
Here, dismissal is not warranted because the defendant was not
actually prejudiced by any alleged misconduct. This case is
similar to United States v. Espy, 23 F. Supp. 2d 1 (D.D.C. 1998),
where the defendant sought to dismiss the indictment because of
alleged erroneous instructions given to the grand jury. In Espy,
the district court denied the defendant’s request holding that “the
defendant incorrectly assumes erroneous grand jury instructions
automatically invalidate an otherwise proper grand jury
34
indictment.” Espy, 23 F. Supp. 2d at 9-10 (citations omitted). The
Espy court found that:
[t]he defendant still must demonstrate the erroneous

instructions created ‘grave doubt’ that the decision to
indict was free from the substantial influence of such
violations. The defendant has failed to do so. All the
contested counts in the indictment met the pleading
standards of Rule 7(c) of the Federal Rules of Criminal
Procedure because each one tracks the statutory language
of the relevant statute and provides sufficient factual
detail to inform the defendant on the nature of the
accusations against him. Furthermore, because the
indictment is measured on the basis of whether the
charged offense provided the defendant adequate notice of
the acts he allegedly committed, ‘an indictment returned
by a legally constituted and unbiased grand jury ··· if
valid on its face, is sufficient to call for trial on the
merits.’
Espy, 23 F. Supp. 2d at 9-10 (citing Costello v. United States, 350
U.S. 359, 362, 76 S. Ct. 406 (1956)).19 Accordingly, given the
appropriate standard, the Espy court denied the defendant’s request
to dismiss and, alternatively, for production of grand jury
transcripts. Id., 23 F. Supp. 2d at 10. Similarly, the
19
“If indictments were to be held open to challenge on the
ground that there was inadequate or incompetent evidence before
the grand jury, the resulting delay would be great indeed. The
result of such a rule would be that before trial on the merits a
defendant could always insist on a kind of preliminary proceeding
to determine the competency and adequacy of the evidence before
the grand jury. This is not required by the Fifth Amendment. An
indictment returned by a legally constituted and unbiased grand
jury, like an information drawn by the prosecutor, if valid on
its face, is enough to call for trial of the charge on the
merits. The Fifth Amendment requires nothing more.” Costello,
350 U.S. at 363 (footnote omitted).
35
Defendants’ motion in the instant case for disclosure of grand jury
transcripts should be denied.
Here, Defendants fail to show any ground supporting dismissal,
much less any “particularized need” for protected Grand Jury
materials. Defendants complain that the example “State Law”
provided in the paragraphs 16 and 17 of the Indictment is not
statutory, but is a state of Georgia regulation. As discussed
above, the Indictment in this case charges violations of federal
law, including 21 U.S.C. § 841. The paragraphs of the Indictment
about which the Defendants complain are provided solely as an
example of conduct which states may require “upon doctors and
healthcare professionals . . . before they could prescribe,
distribute, or dispense controlled substances.” (Indictment [Doc.
1] ¶ 16.) Because the Indictment neither rises nor falls on the
Defendants’ violation of state law or regulations, nor on whether
the example at issue is statutory or regulatory, the Defendants
have articulated no ground which would justify dismissal of the
Indictment, nor, therefore, disclosure of Grand Jury materials.
Put another way, even if Defendants were correct, the Indictment
still sets forth conduct which violates federal law.20 See Espy,
20
Indeed, Defendants so much as concede that omission of
paragraphs 16 and 17 from the Indictment would not result in
dismissal when they move to strike the same paragraphs of the
Indictment as surplusage. (See Mot. to Strike, at 3-4.) In this
vein, Defendants are correct that omission of paragraphs 16 and
17 would not justify dismissal; accordingly, no Grand Jury
material may be disclosed based on them. On the other hand, as
36
23 F. Supp. 2d at 10 (denying request for grand jury transcripts
where defendant “ha[d] not demonstrated that any sufficiently
persuasive grounds for a motion to dismiss the indictment exist”).
Accordingly, because the Defendants have provided no grounds which
would justify dismissal of the Indictment, Rule 6(e) prohibits
disclosure of the Grand Jury material.
the state provision at issue provides relevant evidence of state

requirements on doctors before they may prescribe in the course
of professional practice, these paragraphs are not mere
surplusage.
37
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Strike
Surplusage [Doc. 82] should be deferred or summarily denied.
Defendants’ other pretrial motions [Docs. 76, 79, 93, 96] should be
denied.
Respectfully submitted,
DAVID E. NAHMIAS
UNITED STATES ATTORNEY
/s/RANDY S. CHARTASH
ASSISTANT UNITED STATES ATTORNEY
Randy.Chartash@usdoj.gov
Georgia Bar No. 171
/s/LAWRENCE R. SOMMERFELD
Lawrence.Sommerfeld@usdoj.gov
Georgia Bar No. 666936
600 U.S. Courthouse

75 Spring St., S.W.
Atlanta, GA 30303
Telephone (404)581-6000
Facsimile (404)581-6181
38
CERTIFICATE OF SERVICE
This is to certify that on the date listed below I filed this
document with the Court’s CM/ECF system, which automatically serves
the following counsel electronically:
Edward T.M. Garland, Esq.

Donald F. Samuel, Esq.
Co-counsel for Defendant Christopher Stoufflet
etg@gsllaw.com
dfs@gsllaw.com
Jerome J. Froelich, Esq.

Counsel for Defendant Troy Sobert
JFroelich@mckfroeatlaw.com
Jeffrey H. Brickman, Esq.

Counsel for Defendant Vladimir Andries, M.D.
jbrickman@needlerosenberg.com
W. Carl Lietz, III, Esq.

Counsel for Defendant Thu Anh Hoang, M.D.
carl@law-kl.com
Thomas J. Spina
Michael J. Trost, Esq.
Co-counsel for Defendant Steven Daniel Hollis, M.D.
tommyspina@bellsouth.net
michaeljtrost@yahoo.com
Page A. Pate, Esq.

Counsel for Defendant Ahsan U. Rashid, M.D.
ppate@pate-brody.com
Charles Rogers Floyd, Jr.

Counsel for Defendant Andre D. Smith, M.D.
crf_floydlawofc@bellsouth.net
This 14th day of March, 2007.
/s/LAWRENCE R. SOMMERFELD
Lawrence.Sommerfeld@usdoj.gov

Governments Omnibus Responce To Defedants Motion To Dismiss 03-14-2007

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Case 1:06-cr-00337-CC-JFK Document 149 Filed 03/14/2007 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

UNITED STATES OF AMERICA :

OMNIBUS RESPONSE TO DEFENDANTS'

Comes now the United States of America, by David E. Nahmias,

United States Attorney, and Randy S. Chartash and Lawrence R.

Sommerfeld, Assistant United States Attorneys for the Northern

District of Georgia, and files this OMNIBUS RESPONSE TO DEFENDANTS'

MOTIONS TO DISMISS, TO STRIKE SURPLUSAGE, AND TO REVEAL INFORMATION

BEFORE THE GRAND JURY as follows:

Defendants were indicted by a federal Grand Jury sitting in

the Northern District of Georgia on August 8, 2006 [Doc. 1]. The

Indictment alleges, generally, that Defendants Stoufflet and Sobert

were proprietors of businesses which sold controlled substances and

other prescription drugs to customers on demand. (See Indictment

[Doc. 1] ¶¶ 18, 19, 27-32, 34-38.) Defendants Andries, Hoang,

various times by Stoufflet and Sobert’s businesses to use their

state medical licenses and DEA registration numbers to facilitate

the distribution of the drugs requested by customers. (Id. ¶¶ 20-

confirmed, other than the validity of the customers’ payment

information. (Id.) Put simply, the Indictment alleges that the

Defendants each were part of a scheme to circumvent the drug laws

of the United States, enabling customers to order controlled

substances and other prescription drugs without a legitimate

medical purpose and outside of the usual course of professional

practice. (Id. ¶¶ 18-38.)

In particular, the Indictment charges each of the Defendants

with conspiring to distribute controlled substances in violation of

21 U.S.C. § 841(a)(1). (Indictment [Doc. 1], Count 1.) Defendants

Stoufflet, Sobert, Smith, and Rashid are also charged with

substantive counts of distribution of a controlled substance.

(Id., Counts 2-4.) In addition, Defendants Stoufflet and Sobert

and Cosmetic Act. (Id., Counts 5-51.)

Prior to the pretrial conference held January 24, 2007, the

Defendants filed the following motions to which the Court has

ordered a written response: Hoang’s Motion to Dismiss and Request

To Review the Legal Instructions Provided to the Grand Jury [Doc.

76]; Rashid’s Motion to Dismiss Indictment [Doc. 79]; Sobert’s

Motion to Strike Surplusage and in Limine [Doc. 82]; Smith’s Motion

to Dismiss Indictment [Doc. 93]; and Stoufflet’s Amended Motion to

Dismiss Indictment Pursuant to Fed. R. Crim. P. 12(b)(2) [Doc. 96].

Although different individual Defendants filed each of these

motions, each of the Defendants adopted all of these motions,

pursuant to the opt-out procedure established by the Court during

the pretrial conference. This filing responds to all of the

Defendants’ pretrial motions to which a written response was

requested by the Court.

I. DEFENDANTS MISCONSTRUE THE INDICTMENT AND THE CHARGES AGAINST

Most of the Defendants’ arguments are based on a fundamental

misconstruction of the Indictment and a misunderstanding of the

charges. The Defendants’ motions to dismiss ignore longstanding

precedent confirming that the Controlled Substances Act, 21, U.S.C.

§ 801 et seq., outlaws a physician’s distribution of controlled

substances outside of a legitimate medical purpose and the usual

course of professional practice, see, e.g., United States v. Moore,

defendants’ violations of 21 C.F.R. § 1306.04 and state law and

regulations. (See Stoufflet Mot. to Dismiss [Doc. 96], at 9-24;

Rashid Mot. to Dismiss [Doc. 79], at 2-5; Smith Mot. to Dismiss

[Doc. 93], at 1-2; Hoang Mot. to Dismiss and for Disclosure of

Grand Jury Materials [Doc. 76], at 2-5.) Because the Defendants

revisit this premise so often in various guises, it is helpful to

set the record straight at the outset.

Plainly stated, the Indictment charges the Defendants with