FILED
NOT FOR PUBLICATION MAR 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50420
Plaintiff - Appellee, D.C. No. 8:05-cr-00066-CJC-2
v.
MEMORANDUM *
SARETH TATH,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted March 1, 2010
Pasadena, California
Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM, ** District
Judge.
Sareth Tath was found guilty of thirty-five counts of violating 18 U.S.C.
§ 1347 for his participation in a scheme to defraud Medicare. On appeal, Tath
argues that the district court erred in admitting evidence concerning Revive, a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
business Tath established after Medicare stopped paying the claims of the
scheme’s primary business, United Medical Supply (“UMS”). Tath also
challenges the sufficiency of the evidence. We have jurisdiction pursuant to 28
U.S.C. § 1291 and we affirm.
The Revive evidence was properly admitted under Federal Rule of Evidence
404(b). See Fed. R. Evid. 404(b).1 Evidence of other acts may be admitted if:
(1) the evidence tends to prove a material point; (2) the [other] act is not
too remote in time; (3) the evidence is sufficient to support a finding that
the defendant committed the other act; and (4) (in cases where
knowledge and intent are at issue) the act is similar to the offense
charged.
United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999). In this case, the
evidence tended to prove Tath’s intent to defraud Medicare and his absence of
mistake. Further, the acts were not too remote in time; Tath established Revive
immediately after Medicare placed UMS on pre-payment review. The government
sufficiently proved Tath’s involvement in the Revive venture through the
testimony of co-defendant Vu Nguyen. The Revive scheme also was sufficiently
1
“We review for abuse of discretion the district court’s decision under
Federal Rule of Evidence 404(b) to admit the disputed evidence. We also review
for abuse of discretion the district court’s determination under Federal Rule of
Evidence 403 that the prejudicial effect of the evidence did not substantially
outweigh its probative value.” United States v. Plancarte-Alvarez, 366 F.3d 1058,
1062 (9th Cir. 2004) (internal citation omitted).
2
similar to the UMS scheme, in that the evidence indicated that Tath intended
Revive to bill Medicare for claims generated by a UMS physician using the same
claims forms used by UMS. Finally, the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, and any possible
prejudice was minimized by the district court’s limiting instruction to the jury.
See, e.g., United States v. Romero, 282 F.3d 683, 688 n.1 (9th Cir. 2002).2
The district court also properly denied Tath’s motion for judgment of
acquittal.3 The government was not required to prove that Tath personally
submitted fraudulent claims to Medicare, only that he knowingly and willfully
participated in a scheme to defraud Medicare and acted with the intent to defraud.
See United States v. Dearing, 504 F.3d 897, 901-03 (9th Cir. 2007); United States
v. Stapleton, 293 F.3d 1111, 1117-18 (9th Cir. 2002). Here, the evidence showed
that, inter alia, (1) Tath recruited two doctors accounting for a substantial portion
of UMS’s and his own profits; (2) Tath managed these doctors’ offices, where
2
Because we conclude that the Revive evidence was properly admitted
under Rule 404(b), we do not reach the question of whether the evidence was
alternatively admissible as inextricably intertwined with the UMS scheme.
3
We review a motion for a judgment of acquittal de novo, “viewing the
evidence against the appellant[] in the light most favorable to the government to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Williams, 547 F.3d
1187, 1195 n.6 (9th Cir. 2008).
3
patient recruiters were paid kickbacks, Medicare beneficiaries were brought in
groups only to receive cursory examinations and prescriptions inconsistent with
their conditions, and beneficiaries signed blank forms that subsequently were
completed with fraudulent information; (3) Tath brought fraudulent documentation
for Medicare payments from the doctors’ offices to UMS; (4) Tath was on notice
that patients had complained about being billed for equipment that they did not
need; and (5) Tath established Revive immediately after UMS was placed on pre-
payment review. In light of this evidence, a rational jury unquestionably could
conclude that Tath acted with the requisite knowledge, willfulness, and intent.
Therefore, his conviction is
AFFIRMED.
4