PUBLISH




     IN THE UNITED STATES COURT OF APPEALS

            FOR THE ELEVENTH CIRCUIT
                _______________              FILED
                                     U.S. COURT OF APPEALS
                  No. 96-3117          ELEVENTH CIRCUIT
                _______________             10/09/98
                                        THOMAS K. KAHN
        D. C. Docket No.    94-156-CR-T-23C  CLERK




UNITED STATES OF AMERICA,

                                 Plaintiff-Appellee,
                                    Cross-Appellant,

                     versus

ANGELA F. STARKS,

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



         ______________________________
   Appeals from the United States District Court
         for the Middle District of Florida
           ______________________________

                               (October 9, 1998)
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

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

                                                2
bribery of a public official rather than the guideline for fraud and

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

REMAND.



                                    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


       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,

, 1505 (11th Cir. 1984).

                                                 3
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 not accept any outside


       2
        Although Henry was convicted along with Starks and Siegel for violating the Anti-
Kickback statute, she died during the course of this appeal. We have therefore vacated her
sentence and instructed that she be dismissed from the case.

                                               4
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,

                                  5
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.




    Although Starks and Henry had suggested
     3

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.

                                6
     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

                                  7
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

                                 8
who 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.




                                 9
     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).



                                 10
     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

                                   11
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 Anti-

Kickback 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”:



                                   12
       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 Hooshmand,

, 733 (11th Cir. 1991).4

       In support of their claim, Starks and Siegel rely heavily on

United States v. Sanchez-Corcino, 

(11th Cir. 1996),

and Ratzlaf v. United States, 

, 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 United

States v. Bryan, No. 96-8422, __ U.S. __, __ S. Ct. __, __ L. Ed.



       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 

.

                                                 13
2d __, 

(June 15, 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.” 

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 __, __ S. Ct. at __, 1998 WL at *4-5. 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 that his conduct was unlawful.” Id. at __, __

S. Ct. __, 1998 WL at *5. Further, the Supreme Court

distinguished tax or financial cases, such as Ratzlaf, that

                                   14
“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.” 

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



       5
        In Ratzlaf, the Court reviewed a gambler’s conviction for illegally structuring his
banking transactions so as to avoid technical reporting requirements. 

,
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 __, __ S. Ct. at __, 1998 WL at * 3. Compare R26 at 18 and 11th Cir. Pattern Jury
Instr. 9.1.

                                                 15
       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, rather than malum

prohibitum. Compare Bryan, __ U.S. at __, __ S. Ct. at __, 1998

WL at *5.7 Thus, we see no error in the district court’s refusal to

give Starks and Siegel’s requested instruction.8 Accord United



       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.

                                                16
States v. Davis, 

, 1094 (5th Cir. 1998); United

States v. Jain, 

, 440 (8th Cir. 1996), cert. denied, __

U.S. __, 

, 

(1997); United States

v. Bay State Ambulance and Hosp. Rental Serv., Inc., 

, 33 (1st Cir. 1989). But cf. Hanlester Network v. Shalala, 

, 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 a

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



       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 . Cartwright, 

,
361, 

, 1857-58, 

(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, 

, 321 (11th Cir. 1993); United States v. Awan, 

, 1424 (11th
Cir. 1992).

                                                  17
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., 

. 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


                                   18
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 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, 

, 498-499, 102 S.

Ct. 1186, 1193, 

(1982), the Supreme Court set

                                  19
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 

; Bay

. 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. 

; Bay 

. In sum, we agree with the district court that the Anti-

       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 

, 102 S. Ct. at 1193 (footnote omitted).

                                                20
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

     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

                                  21
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,

, 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

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. 

defendant who contends that he did not

possess fraudulent intent is making a factual, not a legal,

                                   22
challenge to the government’s criminal allegations that precludes

a sentence reduction for acceptance of responsibility. See United

States v. Smith, 

, 989 (11th Cir. 1997) (en banc)

cert. denied, __ U.S. __, 

, 

(1998); see also 

.

     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

                                 23
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


     Moreover, Siegel contested other aspects of
     11

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.
                                  24
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), 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.” 

the district court’s determination of the applicable

guideline de novo. United States v. Acanda, 

, 618

(11th Cir. 1994).12

     At sentencing, the government did not
     12

explicitly object to the district court's
application of § 2F1.1 once the court found that
this provision governed Siegel's sentence. The
                                  25
       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


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.

                                               26
was also that of the district court, Siegel relies on United States v.

Adam, 

, 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 

     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

                                  27
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 

(“Any money, . . .

preferment . . . or undertaking to give any [money or preferment] .

. . with a corrupt intent to induce . . . action, vote, or opinion . . . .

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“) (emphasis added). See also United States v. Kummer, 

, 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

       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 

(affirming application of § 2B4.1 to a physician
who violated § 1320a-7b by paying another, private physician for a referral). Since, as Siegel

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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 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



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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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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