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1 Defendants Christopher Stoufflet, Troy Sobert, and Dr. Thu Anh Hoang haveentered guilty pleas.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA, ::

Plaintiff, :: CIVIL ACTION NO.

vs. :: 1:06-CR-0337-CC

M.D. ANDRE D. SMITH, et al., ::

Defendants. :

ORDER

This matter is before the Court on the Governments Motion in Limine to

Exclude Good Faith Defenses, Including Advice of Counsel, Mistake of Law, and

Erroneous Belief the Conduct was Legal [Doc. No. 217]. While the Indictment in this

action names seven (7) defendants, Defendant Andre Smith is the only defendant

who has not entered a guilty plea who has expressed opposition to the Motion in

Limine.1 On March 7, 2008, counsel for the Government and Defendant Smith

appeared before the Court and orally argued their positions, which are also set forth

in briefs filed with the Court. Having considered the parties briefs and the oral

arguments of counsel, the Court finds that the Motion in Limine is due to be denied

By way of background, Defendant Smith and six other individuals were

charged in a fifty-one count Indictment for their alleged involvement in an Internet-

based business that distributed and dispensed controlled substances and other

prescription drugs. Defendant Smith is charged in only Counts One, Two, and Four

of the Indictment. Count One charges Defendant Smith and the other defendants

with conspiracy to distribute controlled substances. Counts Two and Four charge

Defendant Smith and a co-defendant with the unlawful distribution and dispensing

of controlled substances.

Case 1:06-cr-00337-CC-JFK Document 225 Filed 03/07/2008 Page 1 of 4

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The Government moves the Court to preclude Defendant Smith and any other

defendants proceeding to trial from arguing or presenting evidence that they did not

know they were violating the law and/or were advised by legal counsel that they

were not violating the law when they committed the acts alleged in the IndictmentThe issue that must be determined to resolve the pending Motion in Limine is

whether the crimes charged are general or specific intent crimes, as both the

Government and Defendant Smith appear to agree, and binding and persuasive case

law establishes, that good faith defenses are generally unavailable against general

intent crimes but generally available against specific intent crimes. United States v

Lankford, 955 F.2d 1545 (11th Cir. 1992) (holding that it is an abuse of discretion to

exclude evidence of good faith defense to crime requiring specific intent); see also

United States v. Warner, 498 F.3d 666, 691 (7th Cir. 2007); United States v. DeFries,

129 F.3d 1293, 1308 (D.C. Cir. 1997); United States v. Wall, 130 F.3d 739, 746 (6th Cir

1997); United States v. Pearrell, 74 F.3d 1234 (4th Cir. 1996) (unpublished table

decision). But see United States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (Specific

intent crimes do not, as a rule, necessitate a showing the defendant intentionally

violated a known legal duty.); United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir

1982) (pointing out that murder is a specific intent crime, but a good faith belief in

its legality is no defense).

Section 841(a)(1) of Title 21 of the United States Code provides that it shal

be unlawful for any person knowingly or intentionally ... to manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute, or dispense, a

controlled substance. The conspiracy statute, 21 U.S.C. 846, provides the

following: Any person who attempts or conspires to commit any offense defined

in this subchapter shall be subject to the same penalties as those prescribed for the

offense, the commission of which was the object of the attempt or conspiracy.

The Court agrees with Defendant Smith that the crimes charged are specific

intent crimes, making the exclusion of good faith defenses inappropriate. Relying


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on United States v. Cameron, 907 F.2d 1051 (1990), Defendant Smith asserts that the

Eleventh Circuit has expressly held that specific intent is an element of the offenses

with which Defendant Smith is charged. The Government argues in response that

the Eleventh Circuits discussion of specific intent in Cameron does not addressspecific intent crimes versus general intent crimes but rather spoke of specific

intent simply in terms of volition. The Governments interpretation is not

supported, however, by Eleventh Circuit and other circuit court decisions that have

since interpreted and discussed the holding and implications of Cameron in relation

to the statutory provisions at issue in this case. In Ettinger, 344 F.3d 1149 (11th Cir

2003), the Eleventh Circuit stated, in relevant part, the following:

Cameron is the perfect example of a specific intent crime and the useof a diminished capacity defense to negate the specific intent elementof the crime. Cameron was charged with participating in a conspiracyto distribute crack cocaine in violation of 21 U.S.C. 841(a)(1).Section 841(a)(1) makes it unlawful for a person knowingly andintentionally to possess with intent to distribute a controlled substance.The statute on its face sets forth the specific intent, with intent todistribute.

Id. at 1154. The Eleventh Circuit further stated, On its face, the statute Cameron

was charged under details the specific intent requirement to be satisfied for

conviction. Id. The Sixth Circuit similarly interpreted Cameron as identifying

intent to distribute controlled substances and conspiracy to possess and distribute

controlled substances as specific intent crimes. United States v. Willis, 187 F.3d 639

(6th Cir. 1999) (unpublished table decision); see also United States v. Childress, 58

F.3d 693, 709 (D.C. Cir. 1995) (identifying a 846 conspiracy as a specific intent

crime and noting that the Eleventh Circuit requires proof of specific intent as an

element of the offense).

In light of the foregoing authorities, the Court rejects the Governments

position that the crimes with which Defendant Smith is charged are general intent

crimes. Good faith evidence is relevant, and the CourtDENIES the Motion in Limine

to Exclude Good Faith Defenses, Including Advice of Counsel, Mistake of Law, and


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Erroneous Belief the Conduct was Legal [Doc. No. 217].

SO ORDERED this 7th day of March, 2008.

s/ CLARENCE COOPER

CLARENCE COOPERUNITED STATES DISTRICT JUDGE


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