which may be one or all of us it just depends on how things work so that's our logistics of it please the court your honors my name is mark brown i represent the defendant in this case does to morgan on behalf of mr morgan we would like to thank you for the issues amount of time that goes specifically with mr morgan and then i probably will also touch on the drug quantity issue which goes to all of us but there may be additional arguments and mr gully him as more bring up with that as well  with respect to mr morgan we put we put several issues out there but one of the big issues that we have on his behalf is that the evidence in this case was insufficient to convict him of conspiracy to be involved in a conspiracy a drug conspiracy and firearms charges within the eastern district of tennessee this is the ultimate case with respect to mr morgan of guilt by association there is no dispute the breakthrough pain there the center was own by his stepfather randy kincaid and his mother sandy kincaid but they were the owners of this clinic the evidence at trial showed they set it up as a tennessee limited liability company they had the right and were the only signatories on the accounts that were set up for the business the records that were introduced at trial the bank records from green bank and other banks show specifically that my client mr morgan was a compensated employee for five hundred dollars per week at the start eventually rising to six hundred dollars per week well this place wasn't there with a fire work as a security guard at the at the clinic eventually though he transition to other duties which was just generally office duties taking on help your case too much collecting cash from all these folks that are  difficulty with collecting cash and that be in your specific job function than what every other person at that clinic was doing as a job function there were other job functions that were being done on their front desk duties cetera et cetera and  so i guess i can't speak for the united states government on that your honor and i don't know that's what i've been trying to think about for about five years now i mean the doctor particular venue yeah and the doctors is a critical issue as far as i'm concerned your honor you make a very good the because everyone no they do not that that's true they don't but in this point until much later they didn't even get at the doctors that initially it was just the owners of the clinic misandry who was working there for a while who's miss miss kincaid's daughter and my client mr morgan so though those were the people that they indicted initially and actually mr morgan my client wasn't indicted initially in and ten it was only to the superseding indictment like your later i never even heard of this case i i think heard about the raid on the clinic on the news in two thousand and ten but i had no involvement with this case until the superseding indictment was issued in two thousand and eleven so he was initially part of the of the of the case in fact on the day of the raid he was working there and of course they had their search warrants and look for whatever evidence they could found they found the gun in his desk that day and he didn't get indicted to almost a year later and in fact my client was mr morgan's you know really cooperated with the agents at day and let them go to all these things are consistent with somebody also participating in a conspiracy well they would be consistent with someone participating in a conspiracy if they knew specifically what this clinic was it was about i guess that's where i'm having a hard time i would think that any sentient individual who is in the midst of all this day after day knows what's going on i mean that's just the reality you know and i guess this is your chance to explain why it wouldn't be an obvious well if even if even considering that it's open and obvious to even even if it looks i believe the case law says you've got to be something a little more than an event a then an environment that reeks of something a file and and candidly your honor yes you can probably look at what's going on in this clinic and think maybe there's a little you know some some shaking going on here you know maybe or whatever you know but in his position at that clinic you know even though he's related to mother and stepfather who own the clinic he's not the owner of the clinic he's not he doesn't have to be i mean you don't have to be the owner of the clinic to be in the conspiracy i mean it's not a title issue or something no i  i gree with you there your honor and i'm not asking this court to set here and say as a blanket matter of policy just simply because you're employed somewhere doesn't mean that you are you know that that you're  i don't think we can agree and i see it we're we're stack an inference upon top of inference upon top of inference and we're we say well you know i guess the part i'm having trouble with is how do we get that he's involved in it other than the fact that he's associated with these people i mean airing a gun walking around the building that's a helpful tip thing for somebody in the midst of an illegal cash business and he's also though that was his job  again your honor i know i'm not and i guess we're sort of a stand bouncing back and forth arguing here but you know the day of the raid the gun was actually on his desk he was doing his job functions the other job functions that particular day he was not doing i carry a gun on his hip working as a security guard thing that's very damaging it seems for your client is that one witness said that she saw sandra give a green pill to dust and then the witness thought it was oxy code on you now that that's pretty damaging isn't it well it would be except for the fact that that that particular witness and i understand we're talking about credibility issues i get that i mean you know how we have to look at the record i do i've millions construed in the light most favorable of the prosecution i know that's a you know a high hurdle to have to jump over and i'm kind of used to that  that that morning again i understand we're talking about credibility issues but you look at that through the prism of that particular that particular statement and i think you know if he thought it was an oxycontin but he's not really sure and he's a drug dealer who's you know out on the streets every day who would be familiar with drugs except this guy's only source of income he said was they can ginseng in the mountains which i think is kind of what happens a lot makes tennessee sell but that i don't consider and i see what you're saying your honor but i don't consider that there be as significant as it would appear because of the simple fact that the witness couldn't specifically say you know what it was  just briefly on the drug quantity issue if i can and we've all pled we've all stated in our briefs that we think the calculations were fundamentally flawed because of the average customer and the problem with the average customer at the breakthrough pain therapy center is there was a a total sample at the time of this and series of fifty two files there were fifty four additional lighters so you've got one hundred six total files out of twelve thousand two hundred sixty i think i wrote down which is a very small percentage what's what happened and the efforts we have to jump through there is that we have to go we have to say well every person who came into this clinic was prescribed illegal narcotics and that's just simply something that we do not know you could make an inference on that but we don't know that that was specifically the case of the the average customer which gives roxy code on one hundred twenty roxy cotto and thirty milligram pills you multiply that by the number of visits fourteen thousand one hundred thirty one my co counsel was impressed i remember that number last night but i've read it enough this week that i know that you know and then you get your average customer and you get your drug quantity calculations that way the problem with the average customer as i said is that small sample of files the bigger problem is that assumption that everyone there got illegal narcotics and the other problem is even on the initial fifty two files there were only several of them i believe eleven or so that were dismissed as patients we have to sort of throw them out at that point so we submit and they may have more to say about this the methodology was flawed and all things considered that he was sentenced under yet can you do your honor i think it came out about three hundred forty thousand eight hundred thirty nine point seven two children marijuana equivalency which is which is a high very very very high number and play in the joints here right i mean no pun intended i better leave that one alone again your honour's i would like to thank you for the opportunity to be here today i don't know that i'll get step back up here and talk to you again but thank you from out thank you for the opportunity aiding and abetting her husband randy can cade in the possession with intent to distribute oxycodone and also the money laundering count missing carries three issues on her appeal three primary issues the first being the insufficiency of the indictment she filed a motion to dismiss in which all of the co disparity that was created by her being sentenced to life in this case as opposed to numerous similarly similarly situated defendants both both locally in the eastern district of tennessee and on a national scale and she's also challenging  the calculation of the drug quantity in this case as mr brown indicated this case arose out of the operation of breakthrough pain therapy center which was a pain clinic located in marable tennessee that misc and kate opened with her husband in july of two thousand and nine and it was shut down on december fourteenth of twenty ten when the government executed a search warrant and these defendants were indicted as was obvious her standard kinkade's adult children wendy henry and dustin morgan were also charg convicted in this conspiracy they were employed at various times at the clinic but what the most significant thing in this case is that he was not charged and convicted in this conspiracy where the approximately twelve medical professionals that were employed by the  clinic specifically there was a supervising physician on staff the entire time that the clinic was an operation locker deborah thomas were they charged later they were charged after these defendants were sentenced in a separate conspiracy and that still can and you're on the i don't understand what's the problem off without a doctor being involved and when you look at all of the proof at the trial and it's interesting when you look at the superseding indictment how careful the government was not even reference that there were doctors at this clinic so that made the focus we were lacking testimony or any way to get evidence into the record about the level of involvement of the doctors and that just as it made the whole proceeding fundamentally unfair as to ms can cade because we simply couldn't couldn't say i mean we could argue that there is a doctor there that was examining patients and issuing prescriptions and the testimony did support that most of the patients all virtually all of the patients testify that they did see a doctor at some point when they visited the clinic again when you look at the superseding indictment it talks about dispensing it starts with listing the various schedules of controlled substances and how those can lawfully be prescribed and then it goes into alleging that sandor kinkaid did a number of things that really should only be within the you're correct your honor but it is a distribution charge however when you look at everything in the manner and means it's clearly describing a dispensing situation and again it makes it difficult to process as a defendant when there is no doctor charge and in this case is somewhat of an anomaly in that regard and i've told numerous cases from you know in researching this brief extensively i haven't found a single other case where the doctors were not charged in the conspiracy  and that makes this case very unique and i guess i'm struggling to see what legal principle you think is violated by the government's decision to charge distribution rather than dispens about this breakthrough thing and there is a fair amount of detail about what was going on why it was illegal there is detail but again without the without the doctors being in charge and no evidence as to their level of involvement it's again difficult to defend me when you look at the testimony of the testimony specifically as to miss contains involvement in issuing prescriptions or signing prescriptions was very limited i think two witnesses testified that they saw her sign a script at some point and on cross examination tanya overholt who was a can a confidential informant for the government testified that she was approximately ten to twenty feet away when she allegedly saw sander kinkaid writing on this prescription and you can look at the fifty two  prescriptions and again the testimony was limited about her handing prescriptions to patients there's some testimony that they would patients in the waiting room would be there in a skinhead would walk out and ask if they needed to see a doctor and if they said that they didn't she would disappear into her office   right but the that's correct your honor but the distribution was via the means the issuance of unlawful prescriptions through a breakthrough pain therapy center and the allegations in the manner and means section say that she was examining patients and issuing prescriptions and again the testimony on that point was very limited so to move on to sentencing where she suddenly and there is no quantity alleged in the indictment either so you know going into trial had no idea specifically how much quantity of narcotics she was being held responsible for and then we have the fifty two patient files that the government's expert testified about and i think there was testimony from one patient that she put two pills in her mouth at one point and there was some quantity of drugs found at her house but all of those pills that they were specific testimony about was minuscule compared to those extrapolation method that was employed to determine her sentence  guess i think the government looked at every i mean they did they looked at every single pill that resulted from every single prescription that was ever issued by the clinic whether that was by a doctor by a nurse practitioner miskin kate in these very limited circumstances that they did not your honor no specific quantity at one point actually i think the jurors came back with a question whether a prescription equals a pill they were uncertain on that point the main problem with the trial but they represent a very small sample ing of the patients over the clinics over all patients i mean the clinic had approximately a thousand patients and the testimony at trial was limited to five percent of those and even those people testified that they had a history of you know either being injured they had severe pain they had visited numerous clinics before this clinic and had been on a similar regimen regimen of medication so as a lay person was supposed to determine whether you know these were legit people  the purview of the doctors and the doctors had access to the patients files they were reviewing the records they were charting their treatment of the patients they were you know the testimony was that sometimes there weren't examinations but sometimes there were and this was ongoing chronic pain management  thank you very much for hearing argument today my name is gerald gully of the knoxville tennessee bar i am here on behalf of the codefendant windy henry who is the sister of dust and morgan and the daughter of sandra kincaid miss henry w charged and convicted on the count of conspiracy named in the superseding indictment and the issues that are raised on her behalf have been briefly touched upon in part by through the very able efforts of my co counsel there were just a couple of things i wanted to emphasize and again going back to the issue about the computation of the amount of pills certainly with respect to ms in rate one i guess the i contend that the basic methodology is flawed because for several reasons agent lab took the i guess the entire number of patient visits from the opening of breakthrough pain clinic up until the time  was closed in late two thousand and ten came up with fourteen thousand one hundred thirty one patient visits based on the sign in sheets now again and she testified that she used information from the fifty two files that were allowed by the trial court to be considered the other files being the court said that it could not be used because of lack of probable cause for those but she used the fourteen thousand one hundred thirty one patient visits over the entire time frame of this conspiracy for which the defendants were convicted and again you know with the methodology it's flawed because it assumes that every single patient visit every single patient was there for an improper purpose you say it was a conservative estimate because it just my recollection correct me if i'm wrong was that there were one hundred twenty pills per prescription where some of them were more and some of them were last i think agent loudon testified at the sentencing hearings that it was basically that she got the numbers based upon the amount obtained by an average customer for the twenty eight day prescription period and then you've got the problem in terms of sentencing is the amount if you cut the amount in half with the sentence be the same there's a the court that even if you look at the timeframe based upon the time that miss hender was actually involved in the conspiracy from two thousand and nine up until april or like two thousand and nine up until april may of two thousand and ten the trial court did come to that conclusion but it's still improper because it's still based upon the flawed methodology you know based upon the total number of visits over that period of time with the average customer and you just can't do that be because that involves an improper assumption that every single visit by every single patient involves something illegal and the answer to judgments question is yes that yes i'm sorry and i  but i thought i made that clear but i guess in a word yes just for the record isn't it true it just seems to be a striking fact in discrepant from wrong in my understanding that that every single one of these one hundred six files that the agent looked at the prescription was the same thirty milligrams roxy code on or whatever that was i think there may have been some variation you know between the roxy kodos and the oxy cotto and so forth everyone was thirty and  mean that's a remarkable sort of convergences and i mean in terms of well you know is every one of these invalid well they're doing something the same for all of them that doesn't necessarily mean that each was there for an improper purpose or that that no it doesn't it doesn't but you know i mean you have a tough standard here in terms and princes and believe me you know but the thing of case law also you know the sandridge the case stated you know there has to be a minimum level of reliability for determination of the drug quantities respectfully i don't think that is here the way that the government you know approached it you know if you wanted to take the testimony of the witnesses at trial for which you know the  trial court at sentencing could infer that indeed there was an improper purpose then you're cutting the amounts way down you know and certainly if you look at it with respect to miss him for that six months or so time period for which you know was i guess supposedly into the involved in the conspiracy then it's i think the drug quantities are going to be drastically reduced and it's not just a question of you know instead of you know eleven times the amount needed to get to the level thirty eight it's going to be six times the amount you know we're going to be looking at something significantly less so i think that it is important certainly with respect to her your honor i see that my time if i may thank you ron are you when you use your rebuttal time now or no and i think the morning your honour's may it please the court my name is jennifer coleman i am the representative of the united states of america and at my table is my trial partner from this case actually sitting there is the agent who came up with the actual computations for the narcotics basically i'd like to just kind of clarify a couple things first based on what the defense said i'm not sure we're  coming up with one hundred six files we had fifty four that we were actually narrowed down by a magistrate to look at and that's what we worked with for this trial since then which is not on the record but we've been able to find the rest of the files as to not after trial you found another fifty four boxes from which the agent told one one corrected now is far and as the drug quantities we did take a conservative approach and let me just point out what what i think is probably the strongest part of our argument when this came up as far as where we came up with the thirty rock times the spic specific amount of pills you will see from the record that there were a large amount of pharmacists that actually started calling in like twenty some pharmacists in that area and it's a very small area and basically their concern was is that there was a cocktail of these drugs being given over and over and over again that they were seeing by these and we called them customers that were coming in droves three and four to time to fill these prescriptions from breakthrough many of the pharmacists never get indicted no actually all of the pharmacists ended up stopping selling after a while after a while yes yes which is another interesting part of this because some of the pharmacies where the mom and pops  and basically actually one of them testified told us that he decided he in fact didn't he started giving filling their prescriptions later because he didn't feel comfortable but then they came and talked to him and he felt like they were christian based in that they were ok and then realized he had gotten taken for a ride but he told us that basically in order to stay in business with a larger pharmacies that they felt like they had to fill those so there's there's definitely issues there also just to point out that as far as conservative quantity yes answer argument some of these prescriptions were just a myth even though you call it a conservative estimate you can't say that every single one of the fourteen thousand patient or customer visits and legal prescription your are with all due respect there was nothing in the record to to indicate that there was any legitimate even a blind hog finds and not every once in a while so even if say half of those were filled for a legitimate reason you're still in a level thirty eight so the other thing that isn't is important to note just to understand how many drugs that were going through there was if you just specifically went with our fifty two files that we had in the beginning that our expert looked at your level thirty six so i think that gives you a huge indication as to just those files directly no extrapolate rect correct and there's no what about as you said for the first fifty to yes have you done that same  person the prescriptions that we do know were out there in that people that signed in or something about the fifty two or the fifty or eleven words is correct that probably would be right so that w that they could get them either they might have been doctor shopping or doing something that would cause one foresman to zero in on them and so they would  because i want to say actually a couple of the witnesses that we put on had been dismissed and they were they they gave the reasons for why they were dismissed so yes that was on the record we're due to talk a with with justin to me it was more overall looking at his the entire participation basically what you have is again a situation where just taking the gun  and we started off by saying that we believe that he was a security guard this came from testimony of our agent actually based on what witnesses had seen that he was carrying a gun and walking around it's not that he had security on his back or something of that nature but then he soon when he went to full time then he became the collector of the money as we know the cash that had to be paid upfront and possessed illegally no no but you have to  straight out yes but when you when you look at all the circumstances because he was using it to protect the drug conspiracy then no and what i'm saying is that when you when you look at things say for instance why is a person who's sitting at the front desk of a doctor's office carrying a gun having a weapon to do that i think any rational  juror could say that's that's a little odd but our our whole theory is that this case went outside the four walls of the breakthrough area as you recall there was home which was a different gun and what's interesting about those facts is the fact that his wife also worked at breakthrough she was also a customer there there was evidence that she and wendy henry and sandra were mixing in buying in giving pills to each other based on the type of pills that they like and what was also interesting was so there was a prescription for lortab which is schedule three which wasn't the drug of choice from november that was there that was had never been filled along with empty bottles where in there were multiple pharmacies filling them the interesting part of that is also there were the contracts the the pharmacy contracts that they use and this was supposed to show legitimacy that they were concerned this would keep you from doctor shopping to not go to the different promises well what you have is one of these sitting there filled out and signed by dust and as an employee for his wife and then other ones that were in fact empty which indicates his being part and knowingly going through this conspiracy to continually help to distribute illegal drugs specifically to his wife i mean a bit confused about the dust and morgan in the  fire ok there's a firearm in his desk at the breakthrough pain pain clinic correct and the count three charges him with knowingly possessing a firearm in furtherance of a drug trafficking crime yes it was he was count three relating to solely to that gun prior i'm in that drawer yes that is correct ok so why did you introduce evidence that he had a firearm in his house because as i mentioned earlier under for it's relevant to show that this conspiracy actually his actual knowledge and that the conspiracy was outside of these four walls that it continued not just in the building i don't understand but what what we found to be relevant and what is the fact that it's an additional weapon with the additional prescription the contracts  and the cash all together there which also goes along with as far as relevance to show as we did with the the other search warrants and those  homes the relevance we also took those guns that ran the kincaid had the multiple guns i mean that house was filled with all sorts of pills everywhere that you could find them cutting instruments empty bottles from also heather morgan what material fact those all this tending to show it's going to show that he was using this gun that we transition with in furtherance of a drug conspiracy protect that conspiracy because the drugs cost money the there's cash around there's or it was we understand all of that and so what we're saying is that they believed that they you saw  in the transcript that they justify carrying around the the guns because they had been robbed earlier they believe that wherever these drugs were needed to be correct that's what i'm took me a long time and actually use that but that's what i'm for that's what we were trying to show ok and so that's why i also wanted to just say as far as the drug quantities is first being conservative we would like to point out that the district court actually on mister dustin we only went with the time that we could prove that he was there full time we did not go with the full amount also it's far as mr gulleys defendant when he henry it was pointed out by the court that even if you went with half of the amount which is you know way less than what when she actually left and we say she stayed in the conspiracy because she went opened her own pill mill but it would still be a level thirty eight she deserves that i mean this this case is very important this woman who had absolutely no medical experience opened up a pill mill that when ran wide open for seventeen months a situation and a new type of drug case the da had never seen and yet they were able to shut this down within that amount of time because it was so obvious and what's more disturbing is that this woman who obviously had a drug addiction herself used other people's drug addictions and it affected so many people not just the people that had the addictions but their families  the communities she went outside of the four walls so that she continued her drug sales from her own home the number the plead i think it's hard to gauge i know what you're probably speaking of is the diversion site that comes out with their different cases but the problem is with those it's hard for us to look at to see to determine the amount of drugs what the situation was how many counts those kind of things but from my looking at i know and in the johnson case the person got thirty years which is essentially life i think it just depends on the situation and how it's dealt with and i guess the person who's not in front of us but whose appeal we will be deciding randy got eight hundred thirty months which is not life but it is in terms of years sixty nine years is a long time for anybody for a twenty year old it is a long time it's a serious crime i that's all i can think about it that's that's where the guy mind range is that's obviously where congress feels that it's important on these type of drugs and even now if you're looking at that at the new guidelines there are still thirty eight no matter how you slice it yeah it was a short amount of time that they did it but they did they did they did a huge amount of damage in eastern tennessee if you wish to address this evidence is that you good question they did not take insurance they did not want to deal with it i will speculate and say i think maybe heather morgan who and that wendy henry they had ten care they might have been doing that but when you take the prescription to the pharmacy that's that's who gets paid isn't oh you're saying oh you're yes i'm sorry yeah i that it's out it's outside the record but it's it's sort of bears in general on the harm that's done by this kind of thing i imagine the loss which taxpayers are paying for is a huge huge lines of things i will say your honor that in discussing this with the with the pharmacists they were basically the thing that was interesting to them was that most of these people were coming in and paying cash for which is no small affair and that was what was of interest to them is how these people were able to be coming up with literally thousands of dollars each month  crime and particularly i think we touched on some very important about the gun in his home and that is the fact that we've asserted all along all through the process that simply isn't relevant that the gun in his home and in the statement is and i realize the government agree with your honor statement that well i was trying to understand their argument i'm making it and i didn't mean to misquote you know i know it's not i just want to make clear on that and if their argument is wherever the drugs are they need to be armed well there may be on drugs that  morgan's residence but those were drugs that were specifically perscribe for his wife heather morgan for her personal use and there is no proof in the record anywhere that mr morgan was distributing drugs out of his home there would need to be a firearm there i guess you know i mean just as it's perhaps difficult to understand the relevance of the gun it also seems difficult to understand why it would be terribly prejudicial i mean who's going to be offended or think that somebody is now level under something what you're really you know well i think is presidential only in the respect that i think the theory here has been that the gun was found in his desk it breakthrough to further the drug trafficking crime and because he has a gun at his house he looks a little bit like a just the gun towton drug dealer sickly and we're asking he had a right to be charged and tried with what was found at breakthrough not with what was found at his house now what was found in the safe deposit box but by the way the twenty three thousand dollars worth of cash the government can never say that was the source of that cash in fact they've even conceded in their brief that was from heather morgan's earnings at breakthrough pain therapy center so none of those things had any relevance on anything that happened that at breakthrough pain therapy center and and i know i'm  repeating the things same thing but the kind of wrap it up here because this is my last opportunity to talk to you is that when you look at this overall case in anything they said that my client did was for two reasons because there was a doctor there prescribing these medications or writing these scripts and because there were two owners of the clinic who all be them family members had set up this clinic were in charge of its operational policies were in charge of everything at that clinic and were reaping the profits from it my client got nothing but a weekly paycheck it's guilt by association that's why we're asking this court to reverse it and ask the district court in her judgment of acquittal and i thank you very much for your time i would like to address the the sentencing disparity issue on a nationwide scale it was brought up during the government's response and i detailed numerous cases in our briefs and it is difficult looking at these cases because the pre sentence reports aren't part of the public record so it's hard to determine exactly what played into these computations and a lot of these cases but the first thing that jumps out is clearly nobody else is getting life sentences for these kinds of crimes specifically doctors and it seems consistent in every case i've looked at the first whatever reason the doctors end up getting less time than the lay person owner operator is in the majority of cases and that just that just struck me as as odd and i don't really understand why that happens but there are certain reasons that could exist that's true your honor and this case sander kinkaid had a criminal history score of zero and tammy guzman the case that i've asked the court to take notice of the record the parallel case where the guzman clinic was in operation for eleven months longer than break through in the same county issuing she had more patients than break through i believe she had two thousand patients in the record and breakthrough had a thousand i mean everything looks practically identical with wanted to was less than half scared because your hon the fourth circuit case and i just wanted to draw the court's attention to that because that's another case very similar where there was a firearm involved in the lay person owner operator got thirty six months and i apologize i'm out of time but thank you again for your consideration today thank you for your argument and see that all three of you defense attorneys were appointed pursuant to the criminal justice act and we thank you for your representation of your client and your service to the cards justice thank you all for your argument the cases will be submitted and with the park