Professional Documents
Culture Documents
v. ) 1:06-CR-337-CC
CHRISTOPHER STOUFFLET, et al )
Defendants. )
Government’s Motion in Limine and permit the defendant to introduce relevant evidence
at trial that portrays his state of mind and his efforts to comply with the law during the
period of time that he operated his company. This evidence is relevant to each of the
charges in the indictment and essential to the presentation of the defendant’s sole defense.
The government’s brief summary of the charges in the indictment is accurate: Chris
Stoufflet, along with two partners, operated an Internet company (“E-scripts”) that
enabled people to seek a doctor’s prescription for weight loss medicine online. After
reading and signing an informed consent form and accurately filling out a detailed
questionnaire, the patient could submit a request for certain medication (primarily
Schedule III and Schedule IV weight loss medications; at no time were any narcotics, or
“sleep aids” made available) to a doctor who would review the questionnaire and either
approve or disapprove the request for a prescription, based on the information furnished
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by the patient (health background, height and weight, blood pressure, other medications
currently being taken). If a prescription was authorized by the doctor, one of numerous
medication to the customer. Various safeguards were installed in Mr. Stoufflet’s system
to prevent patients from abusing the prescription process, such as preventing requests for
refills too quickly, or using anonymous names in the application process. Mr. Stoufflet’s
operation was not a “fly-by-night” company. The company was incorporated and had an
the patients’ requests for prescriptions and maintained sophisticated computer data bases
of the patients. Qualified doctors personally reviewed every online prescription request.
The company paid all the required state and federal taxes. The Internet site always
The essence of this prosecution is simple. The government contends that a doctor
may not prescribe medication based on an online application. This argument is based on
around the country (there is no federal law that prohibits doctors from prescribing
participates in the sale (the doctor, the internet intermediary, the pharmacy, and the
patient, as well) are all engaged in unlawful drug dealing. In short, according to the
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government, if the doctor and the pharmacist and the internet company do not comply
with various state policies regarding the practice of medicine, they are no different than
any person who sells cocaine or heroin on the street corner. And this is true (according to
the government), even if the doctor or pharmacist or internet company are not even
violating a state criminal law. It is enough, according to the government’s theory, that
Mr. Stoufflet and his partners did everything in their power to ensure that the
company was run in a lawful manner and in accordance with the menagerie of state laws
and regulations that govern the practice of medicine in the fifty states. Indeed, when they
commenced operations in late 2000, it was not the established law in many states that
internet prescribing of Schedule III and Schedule IV drugs was unlawful. Some states
had informal “policies” that discouraged this practice, or labeled it “inappropriate”; some
states had no policy or position on the matter at all; and some states permitted this
practice. Mr. Stoufflet and his partners spent hundreds of thousands of dollars in legal
As detailed below, Mr. Stoufflet’s company consulted with, and sought advice
from, the DEA and the FDA (and on one occasion wrote directly to the Department of
Justice), as well as scores of state agencies to ascertain the legality of the internet
pharmacy company. In addition, over the course of the three years that the company was
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The Defendant has maintained since the inception of this prosecution that, while conceding that
he committed every act set forth in the indictment, he did not commit a federal offense. In a
lengthy Motion To Dismiss, the defense explained why the violation of a state policy or state
administrative regulation may not be transformed into a federal criminal offense (Doc #96).
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in business, E-scripts retained lawyers from Kilpatrick Stockton; Chorey Taylor & Feil;
Gillen, Parker & Withers; and Arent Fox (the leading health care law firm in the country,
business. An in-house attorney was hired to ensure that at all times the company was
operated in lawful manner. But that’s not all: at one point, the practices of the company
came under the close scrutiny of the FDA in Atlanta, and the agent in charge of the
investigation ultimately concluded, under oath, that the company was run in a lawful
manner, a conclusion that he shared with Mr. Stoufflet and the other owners of the
company.
And that’s not all: the United States Attorney’s Office in the Northern District of
company (believing, at one point, that certain prescriptions were forged). A search
warrant was executed and the company’s computers were temporarily seized. During the
course of that investigation, AUSA Srippoli agreed to return the computers to the
company with the knowledge that E-scripts would continue with its online prescription
business. And that’s not all: Magistrate Scofield was also aware how the company
operated and he, too, permitted the company to return to business after the FDA
conducted a search.2
Attached to this response are the following Exhibits which exemplify the evidence
that Mr. Stoufflet intends to introduce at trial in support of his defense that he did
everything possible to remain in compliance with the law; that he lacked the mens rea to
2
Eventually, the company was cleared of any misconduct. There had been no forgeries.
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commit any federal crime; and that he always conducted the affairs of the company in
good faith:
EXHIBITS
1. This exhibit is a sample of the checks written by the company to the various
law firms that provided legal advice to the company. The total of the checks is
approximately $750,000.00.
a. Arent Fox (the Washington D.C. health care law firm was paid in
excess of $57,000);
exhibit
f. Traub & Associates (Darren Traub, who was also in-house counsel,
legal advice.
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2. In the fall of 2000, as the company was beginning its operations, Dr. Shure,
one of the doctors associated with the company, wrote to various state medical
boards inquiring into that state’s rules regarding internet prescriptions. This is a
sample of one such letter. In response, some states simply stated that there was no
current policy, such as Arkansas and South Carolina, which are attached.
3. On December 20, 2000, Stoufflet wrote to Buddy Parker, former chief drug
prosecutor for the United States Attorney Office and asked for Mr. Parker’s
4. On December 28, 2000 Chris Stoufflet wrote to the DEA asking about the
5. On January 18, 2001, Chris Stoufflet wrote to a local FDA Agent, Paul
Southern, who had interviewed Chris Stoufflet about his operation. In this letter,
Stoufflet advised Southern about his company and advised him that he had
determined from his survey of the states that most states took no position on the
6. On January 30, 2001, FDA Agent Southern advised Mr. Stoufflet that after
7. On April 9, 2001, Chris Stoufflet wrote again to the DEA requesting advice
allegation that one of the doctors’ prescriptions were forged. In the search warrant
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appeared to be in compliance with FDA laws and regulations in that a physician
9. A hearing on a Motion to Return the computers that were seized during the
July 26, 2001 search resulted in a hearing in U.S. District Court at which AUSA
Sandy Strippoli was clearly aware of how the company operated (after all, she had
participated in preparing the search warrant application) and was aware that the
Strippoli and Magistrate Scofield were aware of the fact that the company was
10. Shortly thereafter, on August 17, 2001, Mr. Stoufflet continued to retain
Kilpatrick Stockton and paid a retainer of $500,000 with the understanding that
the company would provide legal advice about the company’s operation.
Kilpatrick Stockton designated various health care lawyers and former federal
prosecutor Buddy Parker as primary counsel for Chris Stoufflet and E-scripts.
11. Several months later, Mel Hewitt, a corporate lawyer who had long
provided legal advice to Chris Stoufflet and E-scripts, wrote to Kilpatrick Stockton
on behalf of Mr. Stoufflet to arrange for a lengthy meeting with the lawyers at
12. On January 15, 2002, Mel Hewitt wrote to Chris Stoufflet reporting to him
about his meeting with the Kilpatrick Stockton lawyers. “[Their] position
remains steadfast that although they cannot find anything you are currently
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doing in the operation of the business to be ‘illegal’, that won’t guarantee an
relationship, . . .”
13. Stoufflet remained determined to have adequate business and health care
counsel and wrote to his principal attorney contact at Kilpatrick Stockton, Craig
Betschi, and asked that Kilpatrick Stockton take a more “pro-active” perspective
14. On April 2, 2002, Mel Hewitt assured Mr. Stoufflet that he would continue
to provide legal advice to the company and would be hiring additional counsel
15. Shortly thereafter, Mr. Stoufflet asked Mr. Hewitt to retain the top health
care law firm in the country, Arent Fox, in Washington, D.C. and have them focus
16. On behalf of Mr. Stoufflet, Mel Hewitt asked the lawyers at Arent Fox
about the scope of the various state laws that regulated the practice of medicine
and whether those regulations governed the activity of the internet companies. In
a separate letter, Hewitt advised Arent Fox that it would be the “go to” firm for all
17. On April 18, 2002 and June 5, 2002, Arent Fox provided two of the many
detailed legal opinions about the company’s operation. Though Arent Fox
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reviewed numerous aspects of the company’s business, at no point did Arent Fox
18. The following week, Mel Hewitt, still engaged as E-scripts’ local business
counsel, outlined in an email to Chris Stoufflet the various projects that he, and the
19. On the same day, Traub advised Stoufflet that he would ensure that the
original).
20. When the new lawyer, Darren Traub, advised Mr. Stoufflet that Nevada
outlawed any internet prescriptions, the company immediately ceased doing any
21. On July 1, 2002, Darren Traub began as full-time counsel for E-scripts. He
22. On July 6, 2002, Mr. Traub began the process of reviewing various legal
aspects of the company’s business and demonstrated that he was, in fact, going to
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The defense acknowledges, of course, that Arent Fox repeatedly expressed cautionary advice
and warned that state law in this field was rapidly evolving and that a careful consideration of all
fifty states’ laws was necessary. The law firm also noted that it could not guarantee that at some
point “regulatory or enforcement” action would not be taken. Nevertheless, at no time did the
firm advise Stoufflet that online prescribing was a federal crime. This is not surprising: No court
had held that online prescribing was a federal crime; and no statute made it a federal crime to
issue a prescription based on an internet application.
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23. On July 11, 2002, Mr. Stoufflet engaged in an email exchange with his in-
house financial office, discussing the retainer paid to Gillen, Parker & Withers
noteworthy that though Gillen, Parker is renowned for its expertise in criminal
defense, there were no pending charges involving E-scripts at this point in time
and the company was actively engaged in the online prescription business. At no
time did Craig Gillen (former director of the Southeast Drug Enforcement Task
Force), Buddy Parker (former chief of the Atlanta federal drug unit of the U.S.
criminal defense expert) advise Chris Stoufflet, or any other person at E-scripts,
that its business was unlawful (to say nothing of a “federal crime”), or that it
24. On July 21, 2002, an internal Arent Fox memorandum reveals the
complication of this area of the law (i.e., online prescriptions). The lawyers
exchanged thoughts about whether the Florida Board of Medicine had adopted a
formal Policy (with a capital “P”) or just a policy. It was also unclear whether
25. On August 29, Chris Stoufflet wrote to other officials in his company
requesting that they “run things by” Jerome Froelich and Arent Fox before making
any decisions.
26. December 17, 2002, Darren Traub wrote to the E-scripts executives,
advising them, once again, that he will handle all the company’s legal affairs.
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This sample of the evidence that the defense intends to introduce illustrates the
efforts that Chris Stoufflet took to ensure that his company operated in an entirely legal
manner. There are hundreds of additional letters, emails and records of communications
between Stoufflet and the lawyers further demonstrating the extent to which he
The government’s Motion argues that none of this evidence has any relevance.
The government posits that this entire case can be resolved without a single inquiry into
the extent to which Chris Stoufflet endeavored to assure that his operation was conducted
in an entirely lawful manner, through his contacts with the DEA, the FDA and the money
he spent to retain top-notch lawyers to ensure that his company would comply with all
state and federal laws. The government’s motion rests on the improper assumption that
there is no defense regardless if the defendant acted in good faith, in reliance on advice of
counsel, or without any culpable mens rea. The government fails to acknowledge, for
example, that at the time that Chris Stoufflet started E-scripts, not a single federal
prosecution anywhere in the country had been brought for online prescribing against a
company whose business model resembled Stoufflet’s. According to the government, the
fact that a federal magistrate, an Assistant United States Attorney, an investigating agent
for the FDA, and scores of highly trained attorneys were unaware that it was a federal
crime to prescribe medicine based on an online contact with the patient – despite the fact
that virtually nobody was aware that this was a federal crime – it is still perfectly
permissible to present this case to a jury by posing the simple question, “did he do it, or
didn’t he?”
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The government’s legal argument is wrong.
In a wide variety of circumstances, the Eleventh Circuit and the United States
Supreme Court have held that a defendant may not be found guilty of a federal crime
unless it can be proven beyond a reasonable doubt that the defendant acted with culpable
mens rea.
In some cases – and the defendant will argue at trial that this is such a case – the
government is required to prove that the defendant acted with knowledge that his conduct
was expressly forbidden by the law. See, e.g., Cheek v. United States, 498 U.S. 192
(1991). This is the rule in circumstances, such as this case, where the laws are highly
complex and a prosecution without proof of mens rea would risk ensnaring a
businessman who intended to comply with all relevant laws on a novel interpretation of
the law. See also Ratzlaf v. United States, 510 U.S. 135 (1994); United States v. Adames,
878 F.2d 1374 (11th Cir. 1989); United States v. Morris, 20 F.3d 1111 (11th Cir. 1994).
The law is a causeway upon which, so long as he keeps to it, a citizen may walk
clearly marked. The exercise of federal government power to criminalize conduct and
reputation and property must be watched carefully in a country that values the
liberties of its private citizens. Never can we allow federal prosecutors to make up the
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United States v. Brown, 79 F.3d 1550, 1562 (11th Cir. 1996). One of the central tenets of
American legal jurisprudence is that “[l]iving under a rule of law entails various suppositions,
one of which is that ‘(all persons) are entitled to be informed as to what the State commands or
forbids.’ ” Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972) (quoting Lanzetta v.
The government’s suggestion that the absence of the term “willfully” in the statute
eliminates any culpable mens rea element disregards settled law in this Circuit. In United
States v. Grigsby, 111 F.3d 806 (11th Cir. 1997), for example, the statute at issue
contained no ”willful” requirement, yet, the Eleventh Circuit held that the government
was required to prove that the defendant was aware of the specific laws and regulations
Moreover, the United States Supreme Court has held that a statute that contains no
“willfullness” requirement may still require the government to prove that the defendant
was aware of the specific law he is charged with violating – that is, that the defendant
was aware that his conduct was illegal. Liparota v. United States, 471 U.S. 419 (1985)
(construing the Food Stamp Act, which contains no requirement that the defendant act
willfully, and requiring that the government prove that the defendant was aware of the
law’s requirements and prohibitions). See also United States v. United States Gypsum
Co., 438 U.S. 422 (1978) (interpreting Sherman Antitrust Act, which contains no explicit
Often, what dictates the level of mens rea which the government is required to
prove is the complexity of the underlying regulations that the defendant is charged with
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violating. Thus, in situations with complex regulatory schemes – such as the tax code –
the government is required to prove that the defendant acted with a higher degree of
knowing culpability. In Cheek, the Supreme Court held that the government would be
required to prove that the defendant had the specific intent to violate the law, knowing
what the law required and what it prohibited, and that the defendant’s belief that he was
in compliance with the law – even if the defendant’s belief was objectively unreasonable
Consider the complexity of this law, not just on its face, but also the novelty of the
theory of prosecution. On its face, the Controlled Substances Act does not apply to
doctors who issue prescriptions for controlled substances. Presumably, doctors are aware
of the myriad of requirements that govern their practice. Yet, as the evidence in this case
will demonstrate, in part because of the novelty of the Internet itself, there was no clear
Schedule III and IV controlled substances) based on an online questionnaire. Many states
did not even suggest that it was illegal or inappropriate. Some states simply hadn’t
considered the issue in a formal manner. Other states had “policies” (with a small “p”)
which were informal advisory opinions. There was (and still is) no federal law relating to
the legality of online prescriptions. A more complex set of conflicting and inconsistent
regulations without any uniform federal standard is hard to imagine. And the way in
which these various state regulations, policies and interpretations would implicate the
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Thus, on the face of the law itself, the complexity and uncertainty of the law
mandates that a more rigorous mens rea requirement be imposed. The government’s
suggestion – that the government should not be required to prove any culpable mens rea
is unconscionable.
Looking beyond the face of the statutes and regulations, the fact that professionals
in the health care and legal fields were incapable of predicting how the laws would be
interpreted further supports the need for the most heightened mens rea requirement.
prosecutions.
In United States v. McIntosh, 124 F.3d 1330 (10th Cir. 1997), the defendant was charged
with bankruptcy fraud and money laundering on the basis of his failure to disclose during his
bankruptcy proceeding that he had received certain money and deposited some of those funds in
bankruptcy attorney testified that he was aware of the existence of the unincorporated business
and was remiss in failing to inquire further and determine if its existence should have been
disclosed to the bankruptcy court. This evidence was sufficient to prompt an "advice-of-counsel"
instruction and the failure to instruct the jury on this defense was error.
In United States v. Caseer, 399 F.3d 828 (6th Cir. 2005) , the Sixth Circuit considered
whether a “mistake of law” defense was appropriate in a case involving a unique violation of the
federal Controlled Substances act. Khat is a substance that contains both cathinone and cathine,
both of which are controlled substance. Khat is a vegetation that is frequently chewed
(apparently like chewing tobacco) by people in Africa, the Middle East and elsewhere. The
Sixth Circuit reversed the defendant’s conviction in light of the failure of the government to
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prove that he had the requisite mens rea to commit the offense. The general rule that citizens
are presumed to know the requirements of the law is not absolute, the Court held, and may be
arrogated when a law is so technical or obscure that it threatens to ensnare individuals engaged in
apparently innocent conduct. To presume knowledge of such a law would violate a core due
process principle, namely that citizens are entitled to fair warning that their conduct may be
criminal. Outlawing “cathinone” and “cathine” did not provide clear warning that khat was
illegal to possess. To overcome this flaw in the statute, the court held that the government
would be required to prove actual knowledge that the possession and importation of khat
was illegal. The evidence was insufficient to prove the defendant’s actual knowledge in this
case.
substances cases are automatically offenses that require no proof of mens rea is overly
simplistic. Given the allegations in this case, the government, as in Caseer, must prove
that the defendant was aware that his conduct was unlawful and conducted his affairs knowingly,
in an unlawful manner.4
Needless to say, at the core of the government’s argument is the adage, “Ignorance of the
Law Is No Defense.” While this is a handy slogan for non-lawyers, as with so many simplistic
maxims, reliance on them by courts is hardly appropriate. Indeed, the notion that ignorance of
the law is no defense has been rejected by countless Supreme Court cases, as noted above,
4
The government’s reliance on United States v. Dohan, 508 F.3d 989 (11th Cir. 2008) is
meritless, as well. In any money laundering case, the government must prove that the defendant
knew that the money that was involved in the transaction was “dirty” or, more precisely, the
proceeds of some felonious activity. What Dohan held is that the government is not required to
prove that the defendant knew that transacting in dirty money is itself a crime. That is obvious.
By analogy to this case, however, what the government must prove is that Stoufflet knew that the
money was derived from felonious activity. Under the government’s myopic reading of that
decision, the defendant need not even know the money was dirty. That is plainly wrong.
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including Cheek v. United States, supra; Ratzlaf v. United States, supra; and scores of Eleventh
Circuit cases that rely on those decisions. Even a first year law student knows that the difference
between a mistake of fact and a mistake of law is often blurred by the existence of legal
preconditions that must exist in order for a crime to be committed. Consider the crime of
adultery, for example: if a defendant marries a woman, believing that he has accomplished a
divorce from his first wife, is it a “mistake of fact” or a “mistake of law” if it turns out that the
first divorce was somehow defective and he is still married to his first wife? In a trespass case, is
it a mistake of fact or a mistake of law if the defendant contends that he believed that he had a
valid easement that entitled him to occupy property that actually belonged to his neighbor?
In this case, was it a mistake of fact, or a mistake of law, that Chris Stoufflet did not
know (or appreciate the significance of) various state administrative regulations and medical
board policies that urged, or in some instances required, doctors to conduct in-person diagnoses
of patients before prescribing weight loss medication? If he believed that the State of South
Carolina, for example, had not taken a position on online prescriptions, is that a mistake of fact
or a mistake of law? This troublesome question is particularly irksome when one considers that
the various policies of the fifty state medical boards are not codified in the same manner as a
criminal law.
And “irksome” hardly describes the situation when the court considers the fact that even
the FDA agent who initiated this investigation told Stoufflet that online prescribing of
medication is not illegal! See United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990); United
States v. Funches, 135 F.3d 1405 (11th Cir. 1998); United States v. Eaton, 179 F.3d 1328 (11th
Cir. 1999); United States v. Thompson, 25 F.3d 1558 (11th Cir 1994); Cox v. Louisiana, 379 U.S.
559 (1965). These cases, which explore the concept of entrapment by estoppel, explain that even
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in a strict liability offense, where absolutely no mens rea is required to be proven at all, a
defendant’s reliance on the statement of a public official that his conduct is legal provides a
Finally, the Supreme Court and other courts have held that to the extent that a statute is
vague or subject to varying interpretations, this vagueness can be cured by requiring the
government to prove that the defendant’s violation of the law was intentional and willful, thus
protecting citizens from prosecution for conduct that they did not realize was criminal. In this
case, only by requiring the government to prove that the defendant willfully violated the law –
and by permitting the defendant to introduce evidence that he did not willfully violated the law –
The right of a defendant to present all relevant evidence in support of his defense is a
core principle inherent in the Due Process Clause. See Holmes v. South Carolina, 547 U.S. 318
(2006) (reversing conviction where defendant was barred from introducing evidence that
demonstrated his innocence); United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) (reversing
conviction where trial court barred defense from introducing evidence that demonstrated that he
lacked the mens rea to commit the offense); United States v. Ethridge, 948 F.2d 1215 (11th Cir.
1992) (reversing conviction where evidence that negated defendant’s mens rea was improperly
excluded).
The Eleventh Circuit has set forth the rules governing the availability of the Advice of
CRIMINAL HANDBOOK, § 92 (2007)). See United States v. Eisenstein, 731 F.2d 1540 (11th
Cir. 1984); Eleventh Circuit Pattern Jury Instruction (Criminal) Special Instruction #18 (2003).
What is required is proof that the defendant fully revealed to his lawyers the nature of his
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business and sought their advice about the legality of his conduct. The evidence in this case
overwhelmingly supports this defense and the government’s effort to bar the presentation of
Respectfully submitted,
DONALD F. SAMUEL
Ga. State Bar #624475
3151 Maple Drive, NE
Atlanta, Georgia 303035
404-262-2225
Fax 404-365-5041
dfs@gsllaw.com
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
v. ) 1:06-CR-337-CC
CHRISTOPHER STOUFFLET, et al )
Defendants. )
CERTIFICATE OF SERVICE
I hereby certify that I have this date served the within and foregoing Defendant’s
Response to Government’s Motion in Limine which will automatically send e-mail notification of
DONALD F. SAMUEL
Ga. State Bar #624475
3151 Maple Drive, NE
Atlanta, Georgia 303035
404-262-2225
Fax 404-365-5041
dfs@gsllaw.com
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