United States v. Carey, 72-1440.
Citation | 475 F.2d 1019 |
Decision Date | 19 March 1973 |
Docket Number | No. 72-1440.,72-1440. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Brian CAREY, D.P.M., Defendant-Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John P. Hanrahan, John G. Davies, Los Angeles, Cal., for defendant-appellant.
William D. Keller, U. S. Atty., Eric A. Nobles, Robert C. Bonner, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.
Before HAMLEY and WRIGHT, Circuit Judges, and POWELL,* District Judge.
On June 25, 1971, the appellant, a podiatrist licensed under California law, was indicted in a nine-count indictment with violations of 18 U.S.C. § 1001. The indictment alleged offenses on nine different dates and charged the defendant with knowingly making false and fictitious statements to various insurance intermediaries acting as paying agents for the Social Security Administration for Medicare.
Prior to trial the Court dismissed Counts three, eight and nine. The trial commenced November 30, 1971. Following the trial the Court granted the defendant's motion for acquittal as to Counts one and two. After three days' deliberation the jury found the defendant guilty of Counts four and seven but was unable to agree on a verdict as to Counts five and six. The defendant was sentenced and fined $2500 on each of Counts four and seven.
In 1966 Congress enacted the medical insurance program called Medicare. The overall administration of the program was delegated to the Social Security Administration. That administration entered into contracts with insurance companies to pay the covered medical expenses. Occidental Life Insurance Company and Travelers Insurance Company were two of such "carriers". Medicare claims were submitted by physicians and others on a Request for Medicare Payment, Social Security Form 1490.
Appellant Brian Carey, a doctor of podiatric medicine in Los Angeles, California, submitted requests for medicare payments on Form 1490 to the insurance carriers as charged in Counts four and seven. The claims were for operations on two of his patients, which claims the Government alleged were false. In his brief the appellant argues the evidence in detail and asserts that it was not sufficient to warrant the finding of the jury convicting the appellant on the two counts from which this appeal is taken.
The jury found the appellant guilty on proper instructions. From an examination of the entire record it is determined that the evidence is sufficient to sustain the verdict of the jury. Since the Government is entitled to have the evidence viewed in the light most favorable to it, the verdict must be sustained on appeal. United States v. Knight, 416 F.2d 1181, 1183 (9 Cir. 1969).
A motion for new trial based upon newly discovered evidence is addressed to the Court's discretion and must meet certain well recognized requirements. They are enumerated in Lindsey v. United States, 368 F.2d 633, 634 (9 Cir. 1966), cert. denied, 386 U.S. 1025, 87 S.Ct. 1383, 18 L.Ed.2d 465 (1967). The motion here is supported by affidavits. A perusal of them shows that the motion, with its supporting documents, does not meet the requirements of the Ninth Circuit as set forth in the Lindsey case. The evidence offered to support the motion for new trial is cumulative and impeaching. There is no showing of the reason for failure to discover it earlier, or that due diligence was exercised in attempting to discover it for use at the trial. The evidence does not appear to be such as would be likely to produce an acquittal on retrial.
The jury was unable to agree on a verdict on Counts five and six. The Court therefore declared a mistrial and continued the trial as to these two counts. The evidence, we find, was sufficient to present the case to the jury. The defendant is attempting to appeal from a portion of the judgment holding the two counts in abeyance pending this appeal. It is not a final and appealable order. The denial of the motion for acquittal is not a final order in this context. United States v. Kaufman, 311 F.2d 695 (2 Cir. 1963).
The delay complained of by the appellant occurred prior to the filing of the indictment against this appellant. Appellant's reliance on Rule 48 is misplaced. United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971).
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