United States v. 2007-03-02 | 04-10231 | USA VST. LUKE'S SUBACUTE CARE HOSPITAL, INC. | precedential…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-10231
Plaintiff-Appellee, D.C. No.
v. CR-02-00044-MHP
Northern District  ST. LUKE’S SUBACUTE CARE of California,HOSPITAL, INC.; GUY ROLAND San FranciscoSEATON,
Defendants-Appellants. DISSENT

Filed March 2, 2007
DISSENT
BEEZER, Circuit Judge, dissenting:
In a memorandum disposition filed on May 5, 2006, the
unanimous panel assigned to this case says:
Appellants were indicted on May 8, 2001. Count 1
—the conspiracy count—alleged that appellants
inflated their cost reports and fabricated payroll
reports, time-cards, and nursing schedules; submitted
false cost reports for 1996, 1997, and 1998; created
false nursing logs and schedules in preparation for a
Medicare audit; and made false statements to audi-
tors from Mutual of Omaha, a fiscal intermediary
acting on behalf of the Medicare program, during its
audit. Counts 2, 3 and 4—the false-claims counts—
charged appellants with submitting false cost reports
for 1996, 1997 and 1998. Counts 5 and 6 were
related to the audit by Mutual of Omaha and charged
appellants with making the false statement that ‘cer-
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tain nurses worked 100% of their time on Medicare
patients’ (Count 5) and obstructing a federal audit by
failing to furnish the actual nursing schedules neces-
sary to assure proper payment by the Medicare pro-
gram (Count 6).
A jury returned a guilty verdict on all counts, and
the district court sentenced Seaton to 78 months’
imprisonment and three years’ supervised release,
denying his request for release pending appeal. St.
Luke’s was placed on probation for five years.1
178 Fed. App’x 711, 713 (9th Cir. May 5, 2006) (unpublished
disposition).
Through papers recently filed by the United States Attor-
ney, we have been advised that the procedural history of this
case is as follows:
On December 19, 2002, following a five-week trial, a fed-
eral jury convicted Seaton of six counts of Medicare fraud.
The district court permitted Seaton to remain free on pretrial
bail conditions.
On April 15, 2004, the district court held a sentencing hear-
ing. At the conclusion of the hearing the court sentenced Sea-
ton to 78 months imprisonment. The court further denied
Seaton’s request for bail pending appeal and ordered Seaton
to self-surrender by August 14, 2004. When the court made its
ruling, it observed: “[T]he case has been pending too long.”
On August 9, 2004, the district court agreed to stay its
order for Seaton to self-surrender, given the pendency of the
Supreme Court’s consideration of the constitutionality of the
federal Sentencing Guidelines.
1Seaton was released on bail by order of a two-judge panel of this court
on May 24, 2005.
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On March 28, 2005, the district court held a hearing on
Seaton’s “renewed” motion for bail pending appeal. After
considering the briefs and arguments, the court again denied
Seaton’s motion and ordered Seaton to self-surrender within
30 days. On April 11, 2005, the court issued a written order
to the same effect.
On May 24, 2005, the Ninth Circuit granted Seaton’s
motion for release pending appeal.
On April 3, 2006, the Ninth Circuit heard oral argument on
Seaton’s appeal.
On May 5, 2006, the Ninth Circuit issued a written ruling
affirming Seaton’s conviction and sentence in their entireties.
On July 14, 2006, the Ninth Circuit denied Seaton’s peti-
tions for panel rehearing and for rehearing en banc.
On July 21, 2006, the Ninth Circuit granted Seaton’s
motion to stay the mandate ‘until final disposition by the U.S.
Supreme Court.’
On January 8, 2007, the Supreme Court denied Seaton’s
petition for a writ of certiorari. 127 S. Ct. 985 (2007).
After the mandate was issued on February 26, 2007, defen-
dant moved to have this court vacate an order to surrender
issued by the district court. Writing “in pro per,” Seaton
argues:
Mrs. Seaton is suicidal. Mrs. Seaton’s [sic] is in liver
failure that puts her in precarious health and constant
need of her husband as her caregiver and support
person. Mr. Seaton’s immediate incarceration
with[out] [sic] arrangement for proper care and sup-
port, Mrs. Seaton would surely die. Mr. and Mrs.
Seaton live alone. Mr. Seaton is 64 years old Mrs.
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Seaton is 67 years old. Their only source of income
is their social security payments. Mrs. Seaton will
lose the benefit of Mr. Seaton’s Social Security ben-
efits when Mr. Seaton is incarcerated. Mr. Seaton is
the sole care giver to Mrs. Seaton. Mrs. Seaton is
suffering from end-stage liver disease.
Neither Seaton nor his counsel have asked us to recall the
mandate. The sole request pending before us is to set aside the
order of the district court directing the defendant to surrender
to the United States Marshal on or before February 28, 2007.
This court recalled the mandate and granted defendant’s
request for relief on February 27, 2007.
In cases like this, the Supreme Court has directed us to
refrain from recalling a mandate absent extraordinary circum-
stances. “In light of ‘the profound interests in repose’ attach-
ing to the mandate of a court of appeals, however, the power
can be exercised only in extraordinary circumstances. . . . The
sparing use of the power demonstrates it is one of last resort,
to be held in reserve against grave, unforeseen contingencies.”
Calderon v. Thompson, 523 U.S. 538, 550 (1998) (citation
omitted); see also Carrington v. United States, 470 F.3d 920,
923 (9th Cir. 2006).
I write separately because this case does not present
extraordinary circumstances or unforeseen contingencies to
allow a recall of our mandate. The United States government
has sustained monetary loss in the sum of $1.5 million to
$2.5 million as a direct result of the defendant’s criminal con-
duct. The judgment of conviction was entered in this case on
June 9, 2004. Our memorandum disposition was filed on
May 5, 2006. The Supreme Court denied defendant’s petition
for writ of certiorari on January 8, 2007. Throughout this
entire period, Seaton has yet to spend a single day in custody.
If any emergency circumstances exist they have not been cre-
ated by the district court or the United States Attorney. Defen-
dant has been given more than adequate time to attend to his
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personal affairs and to make suitable arrangements for the
care of Mrs. Seaton.
I am not able to join the court’s order, which has not been
designated for publication.
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