Zimmerman
United States v. Zimmerman
Opinion
Lead Opinion
MEMORANDUM *
Defendants Ryan Zimmerman and Asphalt Supply and Service, Inc. (“ASSI”) appeal their convictions for false claims and false statements in connection with an asphalt supply contract between ASSI and the Bureau of Indian Affairs (“BIA”). We affirm the convictions for false statements, but reverse the conviction for submitting a false claim, and remand for resentencing.
Count I of the indictment charged Zimmerman and ASSI with submitting a false claim to the BIA on or around August 21, 2000, in violation of 18 U.S.C. § 287 . However, Zimmerman’s August 21 letter does not actually make a demand for *17 money or request for payment; at most, it indicates ASSI’s future intent to make such a request and asserts that ASSI could establish costs of $176,000. The BIA contracting officer conceded in his testimony that this letter was not a payment request. Even viewing the evidence in the light most favorable to the prosecution, no rational juror could have found that the letter constituted a “claim” within the meaning of the statute. See United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992). We must therefore reverse the conviction on this count.