                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 27 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50520

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00181-JLS-2

  v.
                                                 MEMORANDUM*
MARY LIM,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                     Argued and Submitted February 10, 2015
                              Pasadena, California

Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

       Mary Lim appeals a judgment following a jury verdict convicting her of ten

counts of health care fraud in violation of 18 U.S.C. § 1347. Because the parties

are familiar with the facts, we do not recite them except as necessary. Having

jurisdiction under 28 U.S.C. § 1291, we reverse.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Lim challenges the sufficiency of the evidence the prosecution presented to

support her convictions. We review claims of insufficient evidence de novo.

United States v. Wright, 625 F.3d 583, 590 (9th Cir. 2010). We consider whether

“[v]iewing all the evidence introduced at trial, including the erroneously admitted

[evidence], in the light most favorable to the prosecution, a rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt[.]”

United States v. Preston, 751 F.3d 1008, 1029 (9th Cir. 2014) (en banc) (internal

quotation marks omitted) (citing Lockhart v. Nelson, 488 U.S. 33, 40-41(1988)).

      The government concedes that there was insufficient evidence to support

counts one through eight; we agree. We also find that the evidence presented was

insufficient to support counts nine and ten. Each submission of a fraudulent claim

“is a separate execution of the scheme and is itself chargeable as a separate count”;

the government must prove that the specific claim underlying each count was false.

United States v. Awad, 551 F.3d 930, 938 (9th Cir. 2009).

        The government prosecuted Lim for submitting false Medicare claims

without introducing the underlying claims data in evidence. Although witness

Soon Ok Chu testified that she visited the clinic, there was no evidence that Chu

was S.C., the alleged beneficiary in counts nine and ten. The government failed to

connect Chu’s dates of service with the claim submission dates in the first


                                           2                                     13-50520
superseding indictment; it presented no evidence explaining delays between the

dates of service in the record and the claim submission dates. Although the record

included Medicare remittance notices and Medicare reimbursement checks, Chu’s

name was not listed on the notices and the checks did not relate to Chu or her clinic

visits. No one testified that counts nine and ten concerned Chu in any way.

Indeed, the government offered no evidence linking Chu to the allegedly false

claims in counts nine and ten.1 Viewing the evidence in the light most favorable to

the prosecution, including the improperly admitted evidence, we hold there was

insufficient evidence to connect beyond a reasonable doubt the false claims alleged

in the first superseding indictment with the evidence presented at trial. See

Preston, 751 F.3d at 1029.

      REVERSED.




      1
       Although government witness George Salazar testified that he examined the
claims underlying counts one through ten and determined the claims had been filed
and paid, his testimony never connected Chu to counts nine and ten.

                                          3                                     13-50520
                                                                               FILED
USA v MARY LIM 13-50520                                                        FEB 27 2015

                                                                           MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, concurring in part and dissenting in part:         U.S. COURT OF APPEALS



      I concur with the majority’s determination that there was insufficient

evidence on Counts 1 through 8. I respectfully dissent from the majority’s

determination that there was insufficient evidence as to Counts 9 and 10. Viewing

all of the evidence in a light most favorable to the government, a rational juror

could have determined that the “S.C.” listed in Counts 9 and 10 of the indictment

referred to witness Soon Ok Chu, who testified at trial. Chu testified that she never

met with a doctor and never received physical therapy, so a rational juror could

have determined that any Medicare claims submitted on her behalf were false,

regardless of the date they were submitted. Nonetheless, based on the

government’s concession that retrial is required based on the erroneous admission

of hearsay testimony, Lim’s convictions on Counts 9 and 10 must be vacated. I

would therefore reverse and remand for retrial on Counts 9 and 10.
