United States v. Starks

United States Court of Appeals,

Eleventh Circuit.

No. 96-3117.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Angela F. STARKS, Defendant-Appellant,

Andrew R. SIEGEL, Defendant-Appellant, Cross-Appellee.

Oct. 9, 1998.

Appeals from the United States District Court for the Middle District of Florida. (No. 94-156-CR-T-
23C), Steven D. Merryday, Judge.

Before ANDERSON and BIRCH, Circuit Judges, and PAINE*, Senior District Judge.

BIRCH, Circuit Judge:

Defendants Angela Starks and Andrew Siegel seek to overturn their convictions under the

anti-kickback provision of the Social Security Act, 42 U.S.C. § 1320a-7b ("the Anti-Kickback

statute"). Specifically, Starks and Siegel argue that the district court erred by refusing to instruct

the jury concerning the relevant mens rea. In addition, Starks and Siegel contend that the Anti-

Kickback statute is unconstitutionally vague. While denying the defendants' allegations of error,

the government cross-appeals Siegel's sentence on the grounds that the district court should not have

reduced his offense level for acceptance of responsibility, and that the district court should have

applied the guideline for bribery of a public official rather than the guideline for fraud and deceit.

We AFFIRM IN PART, REVERSE IN PART, and REMAND.

*
Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida,
sitting by designation.
 BACKGROUND1

In 1992, Andrew Siegel was both the president and the sole shareholder of Future Steps, Inc.,

a corporation that developed and operated treatment programs for drug addiction. On April 22,

1992, Future Steps contracted with Florida CHS, Inc. to run a chemical dependency unit for

pregnant women at Florida CHS's Metropolitan General Hospital ("the Hospital"). In return, Florida

CHS promised to pay Future Steps a share of the Hospital's profits from the program. As a Medicaid

provider, the Hospital performed medical services for indigent and disabled persons and received

payment for these activities through Consultec, the fiscal intermediary for the Florida Medicaid

program. Before executing the Future Steps-Florida CHS contract, Siegel initialed each page of the

agreement, which included a provision explicitly forbidding Future Steps from making any payment

for patient referrals in violation of the Anti-Kickback statute.

At the time Siegel signed this contract, Angela Starks and Barbara Henry had just become

community health aids in the employ of the State of Florida Department of Health and Rehabilitative

Services ("HRS").2 Although Starks and Henry were employees of HRS, they actually worked in

a federally-funded research project in Tampa, Florida known as "Project Support." As part of their

duties, Starks and Henry advised pregnant women about possible treatment for drug abuse. Upon

beginning their work at HRS, Starks and Henry learned from their supervisor both that they could

1
Because this cases arise from a jury verdict against Starks and Siegel, we view the facts in
the light most favorable to the prosecution. See United States v. Sanchez, 722 F.2d 1501, 1505
(11th Cir.1984).
2
Although Henry was convicted along with Starks and Siegel for violating the AntiKickback
statute, she died during the course of this appeal. We have therefore vacated her sentence and
instructed that she be dismissed from the case.

2
not accept any outside employment that might pose a conflict of interest with their work at HRS and

that they were obligated to report any outside employment to HRS.

During the spring of 1992, Future Steps had difficulty attracting patients. One of Future

Steps's salaried "liaison workers," Robin Doud-Lacher, however, identified Project Support as a

potential source of referrals because of its relationship with high-risk pregnant women. When Doud-

Lacher's initial efforts to establish a referral relationship between Future Steps and Project Support

failed, Siegel suggested to Doud-Lacher that she spend more time at Project Support, give diapers

to Project Support, take Project Support workers to lunch, and otherwise build a relationship with

Project Support's employees.

During one of her subsequent visits to Project Support, Doud-Lacher learned from Starks and

Henry that cuts in federal spending threatened to reduce their work hours. When Starks and Henry

asked if Doud-Loucher knew of other available work, she promised to inquire for them about

opportunities at Future Steps.

After discussing Starks and Henry's interest with her immediate supervisor, Doud-Lacher

spoke directly with Siegel about hiring the two women. Despite Starks and Henry's extant

employment with HRS, Siegel told Doud-Loucher that he would pay Starks and Henry $250 for each

patient they referred: $125 when a referred woman began inpatient drug treatment with Future Steps

and $125 after each such woman had stayed in Future Steps's program for two weeks.3 After

accepting Siegel's terms, Starks and Henry did not report their referral arrangement to anyone at

Project Support or HRS.

3
Although Starks and Henry had suggested limiting their referrals to patients living outside
the area surrounding Project Support and/or restricting their recruiting for Future Steps to their
non-HRS hours, Siegel imposed no bounds on the nature of their referral efforts.

3
 At the outset of their work for Future Steps, Starks and Henry received checks written on

Future Steps's account and signed by Siegel. Before issuing these checks, Siegel verified that the

referred patients had actually entered the Future Steps program; he did not, though, verify that the

referrals were legal. Although the checks Siegel signed were coded variously as payments for

aftercare, counseling, and marketing expenses, Siegel was actually only paying Starks and Henry

for their referrals. In fact, Siegel did not at any time pay Starks and Henry for any of their time,

effort, or business expenses, or for any covered Medicare service.

When Doud-Lacher left Future Steps, Siegel had Michael Ix, another liaison worker, assume

responsibility for the Starks and Henry referral arrangement. Generally, either Starks or Henry

would call Ix and ask him to pick up a referral directly from the Project Support clinic. When Ix

arrived at Future Steps with the referred patient, Siegel would give Ix a check for Starks and Henry.

Later, after Henry told Ix that she did not want anyone at Project Support to see her receiving checks

from Future Steps, Ix agreed to deliver the checks to Starks and Henry either in the Project Support

parking lot or at a restaurant. Between June 1992 and January 1993, Future Steps wrote checks

payable to Starks totaling $2750 and to Henry totaling $1975.

At the end of 1992, Future Steps began paying Starks and Henry in cash. To make these

payments, Ix would withdraw cash from his personal bank account and meet Starks and Henry either

at a restaurant or at a twelve-step program; Siegel and Future Steps would then reimburse Ix. On

one occasion, Siegel accomplished this reimbursement by meeting Ix in a restaurant restroom and

giving him $600. In total, Ix paid Starks and Henry approximately $1000 to $1200 in cash.

Beyond the impropriety of Starks and Henry's acceptance of referral payments from Siegel,

the referral arrangement directly affected Starks and Henry's counseling of the pregnant women who

4
relied on them and Project Support for help. At trial, several of Future Steps's clients testified that

Starks and Henry threatened that HRS would take away their babies if they did not receive treatment

for their drug addictions; in some instances, Starks and Henry threatened women with the loss of

their babies if they did not go specifically to Future Steps. According to these women's testimony,

Starks and Henry informed them only about Future Steps's program (eschewing discussion of

alternative treatments), and most waited with Starks and Henry at the Project Support clinic until

someone from Future Steps arrived to take them to the Hospital. Starks and Henry's physician

supervisor also testified that she told the two HRS employees to be more evenhanded in their advice

to Project Support's patients, after the number of women going to Future Steps from Project Support

increased substantially.

In total, Starks and Henry referred eighteen women from Project Support to Future Steps.

From these referrals, the Hospital received $323,023.04 in Medicaid payments.

On July 29, 1994, a federal grand jury indicted Siegel, Starks, Henry, and Doud-Lacher on

five counts related to the referrals. Count One charged all four defendants with conspiring against

the United States, in violation of 18 U.S.C. § 371, by offering to pay remuneration for referral of

Medicare patients, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A), and by soliciting and receiving

such referral payments, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A). Counts Two and Three

charged Siegel and Doud-Loucher with paying remuneration to Starks and Henry to induce referrals

of Medicaid patients, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Finally, Count Four charged

Starks and Count Five charged Henry with soliciting and receiving referral payments, in violation

of 42 U.S.C. § 1320a-7b(b)(1)(A).

5
 On February 22, 1996, the jury returned guilty verdicts as to all of the defendants on all five

counts. Thereafter, the district court sentenced Siegel to serve three concurrent terms of twenty-four

months of imprisonment and five years supervised release. In choosing this sentence, the district

court reduced Siegel's offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility and

applied the guideline for fraud, U.S.S.G. § 2F1.1. The district court sentenced Starks to two

concurrent terms of thirty months of home detention.

DISCUSSION

On appeal, defendants Starks and Siegel renew two contentions from their trial. First, they

claim that the district court committed reversible error when it refused to instruct the jury that,

because of the Anti-Kickback statute's mens rea requirement, Starks and Siegel had to have known

that their referral arrangement violated the Anti-Kickback statute in order to be convicted. Second,

Starks and Siegel argue that the Social Security Act's prohibition on paid referrals, when considered

together with the Act's safe harbor provision, 42 U.S.C. § 1320a-7b(b)(3) ("the Safe Harbor

provision"), is unconstitutionally vague. We address each of these arguments before turning to the

government's cross-appeals concerning Siegel's sentence.

I. STARKS AND SIEGEL'S APPEALS

A. THE "WILLFULLY" INSTRUCTION

Starks and Siegel argue that the district court erred in its instruction concerning the mens

rea required under the AntiKickback statute. According to 42 U.S.C. § 1320a-7b(b), it is illegal for

a person to "knowingly and willfully solicit[ ] or receive[ ] any remuneration" for referrals for

services covered by the federal government. At trial, the district court gave our circuit's pattern

instruction regarding the term "willfully":

6
 The word willfully, as that term is used from time to time in these instructions, means the
act was committed voluntarily and purposely, with the specific intent to do something the
law forbids, that is with a bad purpose, either to disobey or disregard the law.

R26 at 18; see also 11th Cir. Pattern Jury Instr. 9.1. In reviewing the district court's charge, we

determine whether the court's instructions as a whole sufficiently informed the jurors so that they

understood the issues and were not misled. See U.S. v. Hooshmand, 931 F.2d 725, 733 (11th

Cir.1991).4

In support of their claim, Starks and Siegel rely heavily on United States v. Sanchez-Corcino,

85 F.3d 549 (11th Cir.1996), and Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d

615 (1994). Since we heard oral argument on this case, however, the Supreme Court has issued an

opinion in Bryan v. United States, --- U.S. ----, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), that clearly

refutes Starks and Siegel's position.

In Sanchez-Corcino, a panel of this court held that the term "willfully" in 18 U.S.C. §

922(a)(1)(D) (requiring license for firearms), meant that the government had to prove that a

defendant "acted with knowledge of the [§ 922(a)(1)(D) ] licensing requirement." Id. at 553, 554

("[k]nowledge of the general illegality of one's conduct is not the same as knowledge that one is

violating a specific rule"). In Bryan, though, the Supreme Court explicitly rejected our decision on

Sanchez-Corcino. See Bryan, --- U.S. at ----, 118 S.Ct. at 1946. According to the Bryan Court, a

jury may find a defendant guilty of violating a statute employing the word "willfully" if it believes

"that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge

4
In Hooshmand, we explained further that "[a] trial court's refusal to give a requested
instruction is reversible error only if (1) the substance of the instruction was not covered in an
instruction given, (2) the requested instruction is a correct statement of the law, (3) the requested
instruction deals with an issue properly before the jury, and (4) the party seeking the requested
instruction suffered prejudicial harm by the court's refusal." 931 F.2d at 734.

7
that his conduct was unlawful." Id. at ----, 118 S.Ct. at 1946. Further, the Supreme Court

distinguished tax or financial cases, such as Ratzlaf, that "involved highly technical statutes that

presented the danger of ensnaring individuals engaged in apparently innocent conduct." Id.5

Because "the jury found that [the defendant] knew that his conduct was unlawful," the Bryan Court

wrote, "[t]he danger of convicting individuals engaged in apparently innocent activity that motivated

our decisions in the tax cases and Ratzlaf is not present here." Id. (footnote omitted). Thus, the

Court held that "the willfulness requirement of § 924(a)(1)(D) does not carve out an exemption to

the traditional rule that ignorance of the law is no excuse; knowledge that conduct is unlawful is all

that is required." Id.6

Analogously, the Anti-Kickback statute does not constitute a special exception. Section

1320a-7b is not a highly technical tax or financial regulation that poses a danger of ensnaring

persons engaged in apparently innocent conduct. Indeed, the giving or taking of kickbacks for

medical referrals is hardly the sort of activity a person might expect to be legal; compared to the

licensing provisions that the Bryan Court considered, such kickbacks are more clearly malum in se,

5
In Ratzlaf, the Court reviewed a gambler's conviction for illegally structuring his banking
transactions so as to avoid technical reporting requirements. See 510 U.S. at 137-38, 114 S.Ct. at
657.
6
The Bryan Court thus upheld a jury instruction strikingly similar to the district court's
"willfully" charge in this case:

A person acts willfully if he acts intentionally and purposely and with the intent to
do something the law forbids, that is, with the bad purpose to disobey or to
disregard the law. Now, the person need not be aware of the specific law or rule
that his conduct may be violating. But he must act with the intent to do
something that the law forbids.

--- U.S. at ----, 118 S.Ct. at 1944. Compare R26 at 18 and 11th Cir. Pattern Jury Instr.
9.1.

8
rather than malum prohibitum. Compare Bryan, --- U.S. at ----, 118 S.Ct. at 1946.7 Thus, we see no

error in the district court's refusal to give Starks and Siegel's requested instruction.8 Accord United

States v. Davis, 132 F.3d 1092, 1094 (5th Cir.1998); United States v. Jain, 93 F.3d 436, 440 (8th

Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2452, 138 L.Ed.2d 210 (1997); United States v. Bay

State Ambulance and Hosp. Rental Serv., Inc., 874 F.2d 20, 33 (1st Cir.1989). But cf. Hanlester

Network v. Shalala, 51 F.3d 1390, 1400 (9th Cir.1995).

B. VAGUENESS

Starks and Siegel also argue that the Anti-Kickback statute is unconstitutionally vague

because people of ordinary intelligence in either of their positions could not have ascertained from

7
Regardless of their knowledge of the law, Starks and Siegel should reasonably have
anticipated that their kickback scheme for referrals was "immoral in its nature and injurious in its
consequences," because of the obvious risk it posed of corrupting Project Support and HRS's
roles as providers of medical advice to drug addicted pregnant women. Cf. Black's Law
Dictionary 959 (6th ed.1990) (defining malum in se ).
8
Starks and Siegel also claim that the evidence was not sufficient to prove that they acted
"willfully." Given that the government only had to show that they knew that they were acting
unlawfully, however, this claim is unpersuasive. The government produced ample evidence,
including the furtive methods by which Siegel remunerated Starks and Henry, from which the
jury could reasonably have inferred that Starks and Siegel knew that they were breaking the
law—even if they may not have known that they were specifically violating the Anti-Kickback
statute.

9
a reading of its Safe Harbor provision that their conduct was illegal.9 Under the Safe Harbor

provision, the Anti-Kickback statute's prohibition on referral payments

shall not apply to ... any amount paid by an employer to an employee (who has a bona fide
employment relationship with such employer) for employment in the provision of covered
items and services....

42 U.S.C. § 1320a-7b(b)(3); see also 42 C.F.R. § 1001.952. According to Starks and Siegel, this

provision is vague because ordinary people in their position might reasonably have thought that

Starks and Henry were "bona fide employees" who were exempt from the Anti-Kickback statute's

prohibition on remuneration for referrals.

Starks and Siegel are correct that a criminal statute must define an offense with sufficient

clarity to enable ordinary people to understand what conduct is prohibited. See, e.g., Hofstatter, 8

F.3d at 321. Both the particular facts of this case and the nature of the Anti-Kickback statute,

however, undercut Starks and Siegel's vagueness argument. First, even if Starks and Siegel believed

that they were bona fide employees, they were not providing "covered items or services." As the

government has shown, Starks received payment from Siegel and Future Steps only for referrals and

not for any legitimate service for which the Hospital received any Medicare reimbursement. At the

same time, persons in either Siegel's or Starks's position could hardly have thought that either Starks

9
Starks and Siegel offer a variety of arguments to the effect that persons working in the
medical field cannot anticipate what is prohibited under the Anti-Kickback statute and what is
protected by that statute's Safe Harbor provision. They do not, and cannot, challenge, however,
the government's contention that, since this is not a First Amendment case, we must evaluate
their claim of vagueness only on an as-applied basis. See Maynard v. Cartwright, 486 U.S. 356,
361, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988). Thus, we consider Starks and Siegel's
claim in light of the facts of this individual case, looking only to the constitutionality of the Anti-
Kickback statute as the government has applied it to Starks and Siegel. See United States v.
Hofstatter, 8 F.3d 316, 321 (11th Cir.1993); United States v. Awan, 966 F.2d 1415, 1424 (11th
Cir.1992).

10
or Henry was a bona fide employee; unlike all of Future Steps's other workers, Starks and Henry

did not receive regular salary checks at the Hospital. Instead, they clandestinely received their

checks (often bearing false category codes) or cash in parking lots and other places outside the

Project Support clinic so as to avoiding detection by other Project Support workers.

Furthermore, beyond these particular facts, we see no reason to view the Anti-Kickback

statute as vague. In Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498-499, 102 S.Ct.

1186, 1193, 71 L.Ed.2d 362 (1982), the Supreme Court set out several factors for a court to consider

in determining whether a statute is impermissibly vague, including whether the statute (1) involves

only economic regulation, (2) provides only civil, rather than criminal, penalties, (3) contains a

scienter requirement mitigating vagueness, and (4) threatens any constitutionally protected rights.

As two of our sister circuits have already concluded, these factors militate against finding the Anti-

Kickback statute unconstitutional. See Hanlester, 51 F.3d at 1398; Bay State, 874 F.2d at 32-33.

Indeed, the statute regulates only economic conduct,10 and it does not chill any constitutional rights.

Moreover, although the statute does provide for criminal penalties, it requires "knowing and willful"

conduct, a mens rea standard that mitigates any otherwise inherent vagueness in the Anti-Kickback

statutes's provisions. Hanlester, 51 F.3d at 1398; Bay State, 874 F.2d at 33. In sum, we agree with

the district court that the Anti-Kickback statute gave Starks and Siegel fair warning that their

conduct was illegal and that the statute therefore is not unconstitutionally vague.

II. THE GOVERNMENT'S CROSS-APPEAL

10
In Hoffman Estates, the Court explained that "economic regulation is subject to a less strict
vagueness test because its subject is often more narrow, and because businesses, which face
economic demands to plan behavior carefully, can be expected to consult relevant legislation in
advance of action." 455 U.S. at 498, 102 S.Ct. at 1193 (footnote omitted).

11
 In its cross-appeal, the government contends that the district court incorrectly granted Siegel

a U.S.S.G. § 3E1.1 reduction for acceptance of responsibility. In addition, the government maintains

that the district court erred by sentencing Siegel under the fraud and deceit guideline, U.S.S.G. §

2F1.1, rather than the bribery of a public official guideline, U.S.S.G. § 2C1.1.

A. ACCEPTANCE OF RESPONSIBILITY

On appeal, the government argues that Siegel should not have received a three-level

reduction for acceptance of responsibility because he denied having had any guilty intent. In

response, Siegel contends that he was entitled to the reduction because he admitted all the relevant

facts and cooperated with the government's investigation, while preserving his legitimate legal

position regarding the applicability of the statute to his conduct. We review the district court's

determination that Siegel accepted responsibility for clear error. United States v. Anderson, 23 F.3d

368, 369 (11th Cir.1994) (per curiam).

To receive a reduction under § 3E1.1, a defendant must prove that he clearly accepted

responsibility for his offense. See id. The reduction does not apply to "a defendant who puts the

government to its burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse." U.S.S.G. § 3E1.1, comment. (n.2).

Nonetheless, a defendant may, "[i]n rare situations," be entitled to this reduction if he goes to trial

to assert and preserve issues unrelated to factual guilt, such as the applicability of a statute to his

conduct. Id. Still, a defendant who contends that he did not possess fraudulent intent is making a

factual, not a legal, challenge to the government's criminal allegations that precludes a sentence

reduction for acceptance of responsibility. See United States v. Smith, 127 F.3d 987, 989 (11th

12
Cir.1997) (en banc) cert. denied, --- U.S. ----, 118 S.Ct. 1202, 140 L.Ed.2d 330 (1998); see also

Sanchez-Corcino, 85 F.3d at 555-56.

By its terms, 42 U.S.C. § 1320a-7b(b)(2) makes it illegal for any person knowingly to offer

any payment "to induce" a referral for services covered by the federal government. Citing this

provision, Siegel argues that by conceding at trial that he made payments to Starks and Henry, he

admitted all the conduct prohibited by the statute. As the government correctly points out, however,

Siegel has denied having had any intent to induce referrals, an essential element of the charges on

which he was convicted. Because Siegel put the government to its burden of proof by contesting

his intent to violate 42 U.S.C. § 1320a-7b(b), Siegel's arguments at trial amounted to a factual denial

of guilt and were therefore inconsistent with acceptance of responsibility.11 Given the factual

positions that Siegel has taken—and continues to take—we conclude that he should not have been

eligible for a reduction for acceptance of responsibility and that the district court therefore clearly

erred in awarding him a three-level reduction under § 3E1.1.

B. THE FRAUD AND DECEIT GUIDELINE

Additionally, the government argues that the court erred by sentencing Siegel under the §

2F1.1 "Fraud and Deceit" guideline rather than the § 2C1.1 "Bribe" of a public official guideline.

Appendix A of the Sentencing Guidelines references three guideline sections which are applicable

to violations of § 1320a-7b: U.S.S.G. § 2B1.1 (larceny), U.S.S.G. § 2B4.1 (commercial bribery),

11
Moreover, Siegel contested other aspects of the offense, further supporting the government's
claim that he did not accept responsibility: that he signed a contract that specifically forbid him
to pay for referrals or to "take any action in violation of § 1320a-7b"; that he agreed to the
specifics of Starks and Henry's payment arrangements; that he reimbursed Michael Ix for cash
payments made to Starks and Henry for referrals; and that he instructed his secretary to prepare
referral checks for Starks and Henry.

13
and § 2F1.1 (fraud). U.S.S.G. app. A, at 384. If more than one guideline section is referenced for

the particular statute, Appendix A instructs the sentencing court to use the guideline most

appropriate for the nature of the conduct charged. See U.S.S.G. app. A, at 373 (introduction).

Further, the Appendix provides that if, "in an atypical case, the guideline section indicated for the

statute of conviction is inappropriate because of the particular conduct involved, [courts should] use

the guideline section most applicable to the nature of the offense conduct charged in the count of

which the defendant was convicted." Id. We review the district court's determination of the

applicable guideline de novo. United States v. Acanda, 19 F.3d 616, 618 (11th Cir.1994).12

Regarding the three guidelines listed as potentially applicable in Appendix A, the

government and Siegel properly agree that Siegel should not be sentenced under § 2B1.1 or § 2B4.1.

Since § 2B1.1 applies to crimes involving stolen property, it clearly has no relevance. Moreover,

since § 2B4.1 applies only to "bribery offenses and kickbacks that do not involve officials of federal,

state, or local government," § 2B4.1 comment. (n.1), this guideline provision, too, cannot be

appropriate for Siegel, who illegally induced referrals from a state employee working in a federal

Medicare project.13

Siegel, however, asserts that the third listed guideline, § 2F1.1, is relevant and applicable.

To support this position, which was also that of the district court, Siegel relies on United States v.

12
At sentencing, the government did not explicitly object to the district court's application of §
2F1.1 once the court found that this provision governed Siegel's sentence. The government did,
however, vigorously contend that Siegel's conduct constituted bribery. Because the government
objected to this factual determination, and the decision about which guideline to apply
necessarily followed from the district court's ruling, the issue has been preserved for appeal.
13
By contending that § 2B4.1 does not apply because Siegel's kickback scheme involved a
public official, Siegel appears to concede that we should treat Starks and Henry as government
officials in reviewing his sentence.

14
Adam, 70 F.3d 776, 781 (4th Cir.1995). In that case, the Fourth Circuit affirmed a district court's

sentence, under § 2F1.1, of a physician who had violated the Anti-Kickback statute. Although Adam

involved application of § 2F1.1 to the Anti-Kickback statute, we find the case to be of little help to

our consideration of Siegel's sentence, because the Adam court addressed only the district court's

calculation of the government's "loss," without discussing whether § 2F1.1 or some other provision

was the most appropriate guideline. See id. at 781-82.

Further, we see little reason to view § 2F1.1 as any more applicable to Siegel's conduct than

§ 2B1.1 or § 2B4.1. As a central part of any application of § 2F1.1, a district court must calculate

the "loss" suffered by the defrauded or deceived victim. See generally § 2F1.1. Yet, in this case

Siegel did not steal from anyone, including the government; Siegel did not file false Medicare

claims but rather engaged in a kickback scheme that corrupted Project Support's referral process.

While a district court should sentence persons committing Anti-Kickback crimes involving fraud

or false statements under § 2F1.1, this provision is not appropriate for this case.

In fact, Siegel's crime presents the "atypical case" in which the listed guideline for the Anti-

Kickback statute is inapposite and a court should resort to a more applicable section, in this instance

§ 2C1.1. First, we note that the term "induce" in 42 U.S.C. § 1320a-7b(b)(2) can be reasonably

understood in this case to connote bribery. Indeed, the term "induce" is defined as "[t]o bring on or

about, to affect, cause, to influence to an act or course of conduct ...," Black's Law Dictionary at 775;

in the context of this case, "induce" and "bribe" are thus virtually synonymous, since Siegel induced

Starks and Henry to refer patients to Future Steps through illicit payments. Compare id. at 191

("Any money, ... preferment ... or undertaking to give any [money or preferment] ... with a corrupt

intent to induce ... action, vote, or opinion .... ") (emphasis added). See also United States v.

15
Kummer, 89 F.3d 1536, 1540 (11th Cir.1996) (discussing meaning of "bribe"). Second, the Anti-

Kickback statute explicitly refers to "kickbacks, bribes, and rebates" as prohibited forms of

remuneration for referrals, bringing Siegel's crime within the purview of the terms of § 2C1.1. See

42 U.S.C. § 1320a-7b(b)(2)(A). Thus, the indictment and jury instructions in this case referred to

payment of "remuneration (including kickbacks, bribes, or rebates)." R1-2 at 3 (indictment); see

also R26 at 24 (instruction defining remuneration). Finally, by paying Starks and Henry for

referrals, Siegel sought to corrupt their execution of their duties as state employees and workers in

a federal program—just the sort of corrosive activity that the Sentencing Commission designed §

2C1.1 to punish. Cf. § 2C1.1 comment. (background).14 Therefore, we hold that the district court

erred in applying § 2F1.1 rather than § 2C1.1 in sentencing Siegel.

CONCLUSION

In this case, Starks and Siegel ask that we reverse their convictions for violating and

conspiring to violate the Anti-Kickback statute, while the government requests that we reverse the

district court's application of two guideline provisions to Siegel's sentence. With regard to Starks

and Siegel's appeal, we hold that the district court did not err when it refused to give their requested

14
At Siegel's sentencing hearing, the district court refused to sentence him under § 2C1.1
because it "didn't charge the jury" on bribery of public employees. R29 at 30. The district
court's reasoning, however, conflated two separate issues: first, whether Siegel was involved in
bribery; and second, if so, whether he had been involved with bribery of a public official. If
Starks and Henry were bribed but were not public officials, then § 2B4.1 (commercial bribery)
would have applied. See Jain, 93 F.3d at 442-43 (affirming application of § 2B4.1 to a physician
who violated § 1320a-7b by paying another, private physician for a referral). Since, as Siegel
has conceded to this court, Starks and Henry were government officials, then, if Siegel bribed
them, § 2C1.1 (bribery of a public official) should apply. It would be incongruous for this court
to hold that a defendant who paid a private person for an illegal § 1320a-7b referral should be
sentenced for bribery, but that another defendant who participated in the same conduct with a
government official should be sentenced for fraud rather than bribery of a public official.

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instruction, and that the Anti-Kickback statute is not unconstitutionally vague as applied to Starks

and Siegel. Therefore, we AFFIRM these parts of the district court's judgment. With regard to the

government's cross-appeal, we hold that the district court clearly erred in granting Siegel a reduction

for acceptance of responsibility, and we conclude that the district court should have sentenced Siegel

under § 2C1.1 rather than § 2F1.1. Therefore, we REVERSE these parts of the district court's

judgment and REMAND for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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