                                                                           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                            NOT FOR PUBLICATION                             MAR 09 2010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.




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