motion for immediate court intervention 07-30-07
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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
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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
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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
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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
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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.
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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.
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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
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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).
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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
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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
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(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.
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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
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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
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