Case Information
*1 Before W OOD , Chief Judge, B AUER , Circuit Judge, and S HADID [*] District Judge.
‐ 15 ‐ B AUER Circuit Judge.
On March 25, 2015, seven week trial, convicted Edward Novak and Clarence Nagelvoort of knowingly and willfully causing Sacred Heart Hospital in Chicago, Illinois, offer and pay kickbacks physicians in return patient referrals, in violation of U.S.C. § 1320a–7b(b)(2)(A) (Anti Kickback Statute), and conspiracy do so in violation of U.S.C. § 371. They now challenge their convictions number grounds. For reasons follow, we affirm convictions.
I. BACKGROUND
On March 18, 2014, and charged participating scheme which, through 2013, Sacred Heart Hospital paid illegal kickbacks physi ‐ cians exchange referring During time, owner Sacred Heart and served as President and Chief Executive Officer. Between August and April 2011, worked as outside consul tant Hospital, and various times during period, served as Hospital’s Vice President Administration and Chief Operating Officer. federal agents began investigating and securing
cooperation physicians other Heart employees, some whom began recording conversations Sacred administrators physicians. On April federal agents executed warrants authorizing search Hospital its administrative storage facilities.
At trial, government presented audio recordings, testimony cooperating physicians staff, docu ments gathered search paid 3 kickbacks to physicians by concealing them payments under various types contractual arrangements. The government’s case focused on four types agreements: (1) direct personal services contracts; (2) teaching contracts; (3) lease agreements for use office space; (4) agreements to provide physicians with services other medical professionals.
A. Personal Service Agreements With Physicians Jagdish Shah, oncologist, gained privileges and began seeing patients in 2000. At trial, Shah testified that another clinic where he was working closed, he told Novak that he could direct approximately Scared Heart. Novak said he interested and directed Shah speak with Nagelvoort about arrange ment. Shah relayed same information Nagelvoort, who then said he would speak with Novak. A couple days later, called Shah told him contract him pick up. Until point, Shah discussed specific additional services Shah might provide Hospital.
The contract provided Shah would devote hours per month developing cancer screening program and consult oncology hematology cases exchange a monthly payment $2,000. Shah then met to explain he unable devote hours per month such work. responded Shah should “just sign contract.” Shah understood mean have do work required contract. It understanding exchange $2,000 15 per month, he required only bring patients Sacred Heart. Shah and then signed contract.
From July through January Shah submitted time sheets Sacred Heart showed he performed work and services he did actually perform. Shah testified that during time period, he never spent hours one month performing duties set forth contract. He also submitted time sheets showing time spent on services that were outlined contract. Still, he received $2,000 every month. April Rajiv Kandala entered into an
agreement provide education patients staff regarding palliative care and hospice services. The contract provided Kandala paid $175 per hour up hours such work per month. submitted time sheets maximum number hours each month was paid monthly maximum amount $4,025. Numerous administrators staff no such palliative care educational screening program at Hospital. According these witnesses, Kandala rarely, if ever, seen at Additionally, some Kandala’s time sheets showed attendance at meetings not occur dates recorded.
Between April March Chief Operating Officer Anthony Puorro numerous conversations with Kandala regarding Kandala’s patient admission numbers. On least three occasions, Puorro noted Kandala’s admission numbers down asked Kandala if could increase number sent Sacred Heart. In February discussing Kandala’s declining numbers, Novak suggested to Puorro they take Kandala out talk to him because “we need patients over here.”
B. Teaching Contracts
Doctor William Noorlag Director Sacred Heart’s Podiatric Residency Program to 2010. In 2001, Novak told Noorlag wanted create paid teaching positions for podiatrists as way bring more podiatric Hospital. Noorlag testified prior creating these teaching contracts, attending podiatrists at Sacred Heart already taught residents part their regular duties, without additional compensation. According Noorlag, attending physicians perform duties justified additional teaching salaries. testified in or Novak instructed him must be evalua ‐ tions other paperwork justify contracts, ex plained, “If I go down this, you’re going down with me.” late Sacred Heart entered into teaching contract Richard Weiss. At trial, Weiss when first met discuss teaching contract, was Weiss’ understanding Sacred would compensat ing him bringing surgical cases There was no discussion meeting Weiss’ qualifications any details residency program. Weiss eventually signed contract, under Weiss receive $2,000 per month teaching performing various other services related residency program. From through 2008, Weiss received monthly salary Heart, but performed none services listed teaching contract. Instead, he simply allowed residents observe his surgeries in same manner had done, without additional compen sation, before signing contract.
In November signed contract with Doctor Shanin Moshiri, which contained same duties as Weiss’ contract, stated Moshiri would “Director of External Office Rotations” residency program. Noorlag, Director program, did not consider Moshiri hold position another podiatrist was, fact, in charge arranging external rotations residents. Like Weiss, Moshiri paid $2,000 per month under contract. According Noorlag, Moshiri not perform duties outlined contract his instruction residents limited allowing them observe and participate surgical procedures. Additionally, records showed other attending podiatrists who compen sated under teaching contracts significantly more contact residents than Moshiri did. May drafted teaching contract for Subir Maitra, which mirrored contracts Weiss Moshiri. Under contract, Sacred pay Maitra $2,000 per month serve faculty member Hospital’s “Medical Student Program.” At time, was already medical student program Hospital, was run outside organization called Affiliated Institute for Medical Education (AIME). This organization independently paid physicians allow medical students rotate them. Maitra received teaching compensation Heart, AIME.
Students who rotated with Maitra were to record their time in a logbook, which Maitra was then required to sign. directed his assistant to maintain this logbook. At Maitra’s request, was allowed to sign blank log sheets, were to be filled later students. By June 2012, students stopped recording their time altogether, but Maitra’s signature continued to appear blank logs. Sacred Heart continued to pay Maitra under contract through April 2013. During meeting Puorro February 2013, Puorro told Maitra wanted to know how many patients Maitra was referring to Maitra responded: “Every month, I’m bringing at least three to four insurance cases … . should giving me more [money], little bit.” There was no discussion during meeting Maitra’s teaching duties under contract.
C. Lease Agreement
In March 2004, signed lease rent space from Percy Conrad May, Jr. May Medical Center. Sacred agreed pay $5,000 per month rent three exam rooms, clinic’s pharmacy, its waiting area. In December signed addendum this lease, lowering monthly payment $2,000, no changes other terms. At trial, Noorlag 2006, Ed Lorgeree, Chief Operating Officer, explained him lease established so May refer podiatry Heart. In April during a recorded conversation, Chief Financial Officer, Roy Payawal noted when rent $5,000, “we getting five or six referrals month,” but when rent reduced, May’s referrals “dried up.” September prior coopera tion, Puorro recorded stating: “[May]’s getting 2,000 dollars a month … . That’s check, ah, it’s in exchange for continuing relationship. It’s quid pro quo. We expect admissions be sent Hospital, otherwise it doesn’t make financial sense for us.”
D. Agreements Services Other Medical Professionals
In early discussed with Director of Nursing, Deborah Savage, arrangement whereby Hospital would hire physician’s assistants (PAs) some of their attending physicians. At trial, Savage testified that explained this arrangement create an incentive physicians refer patients
Savage’s successor, Michael Castro, he multiple meetings Novak, Nagelvoort, Director Respiratory Practice, Ernie Velasquez. During those meetings, explained Hospital needed provide Ventkateswara Kuchipudi PA order obtain more patient referrals him. conversation recorded February 2013, Velasquez explained arrangement:
When Clarence [Nagelvoort] wanted get Kuchipudi here, … Kuchipudi said I can bring in, but I need some help. Clarence thought about program, pro gram whereby is gonna hire PAs … . You will make money guarantee your patient will protected, it’s not gonna stole from you, and we make money Medicare admission. Doug Willaman began working as a PA at Sacred Heart in February 2009. Shortly thereafter, Willaman had meeting Shah and Nagelvoort. Willaman testified during meeting, Nagelvoort told Shah Willaman would provide services for Shah’s patients both at clinic and Hospital, and return Nagelvoort expected Shah to refer five ten patients per month Sacred Heart. Willaman saw patients at Shah’s clinic between February and December 2010, and paid salary by Hospital, but was never compensated Shah.
Joanna Swajnos began working PA at Sacred Heart in November 2009. In December 2009, assigned Swajnos work at May’s clinic treating patients two half days per week. May did compensate Swajnos for her work, but did bill services she provided patients. paid Swajnos’ salary bill her services. July Debra Savage asked Roy Payawal for May’s admission numbers. She she thought Swajnos needed more at than at May’s clinic, but if May bringing enough admissions Hospital, she keep Swajnos clinic some capacity. Between January July May admitted four After she received informa tion discussed Nagelvoort, made decision recall Swajnos clinic.
Beginning assigned Swajnos, Willaman, nurse practitioners (NPs) Jean Rush Myrline Jeudy assist Kuchipudi with patient care. They worked Kuchipudi’s patients both in the Hospital and at various nursing home facilities. Swajnos, Rush, and Jeudy each testified that they spent at least 90% of their time working with Kuchipudi’s and understood him their boss. Kuchipudi never paid Rush Jeudy, who received all of their compensation from the From March April Swajnos received between 25% 30% of her compensation Kuchipudi, but estimated that, during period, 60% her time was devoted patients. She still received her full salary the Hospital, as well. In re ‐ corded conversation in March regarding these arrange ments, Payawal explained: “I think that the main reason, uh, we created that, uh, PA do … work uh, doctor, particularly Kuchipudi. Because I don’t think he will come here, if not set up him.” same conversation, Payawal confirmed set up these arrangements knew about them.
On numerous occasions, conferred Heart’s outside counsel, Joan Lebow, when creating these arrangements. Lebow Nagelvoort told her Hospital intended employ PA NP full time, but only use them 70% time sell balance time attending physicians market value. Upon information, Lebow drafted memorandum August she advised relationship did not fit into safe harbor provisions Anti Kickback Statute, but might violate law so long referral inducement purpose arrangement. responded memorandum email first ‐ ‐ 11 explaining discussed it with Novak. Among other suggested revisions the memorandum, Nagelvoort re quested Lebow “remove bullet point three refers referrals!!! [P]lease delete this.”
For the next few months, Lebow continued confer with and provide advice Novak and Nagelvoort regarding these arrangements. February another memorandum from Lebow reiterated when the PAs and NPs were working at Hospital, only Hospital was allowed bill services, attending physician. Lebow stated allowing PA NP work a physician while PA or NP working shift could considered an illegal inducement referrals.
E. Indictment, Trial, and Post ‐ Trial Motions On March Novak and Nagelvoort were charged in superseding indictment with violating U.S.C. § 1320a–7b(b)(2)(A), and conspiring do so violation U.S.C. § 371. Novak charged with substantive counts of violating Anti ‐ Kickback Statute was charged with such counts. After seven week trial, jury found both guilty conspiracy count, all but one substantive counts which they charged.
At trial, post trial motions, Nagelvoort argued insufficient prove they acted requisite knowledge willfulness under statute. They argued government failed prove certain agreements fell outside statute’s safe harbor provisions. separately argued he ‐ ‐ withdrew the conspiracy when resigned his position April as such, any coconspirator statements made that date not admissible against him.
The district court rejected these challenges. It held there sufficient evidence the find that Novak Nagelvoort acted knowingly the contracts did not fall within the statute’s safe harbors. The court also affirmed its ruling Nagelvoort proven drawal as matter law.
II. DISCUSSION
On appeal, both Nagelvoort argue the government present sufficient evidence support their convictions violating the Anti ‐ Kickback Statute. challenges district court’s rulings jury instruction regarding withdrawal conspiracy. Finally, argues Anti Kickback Statute is unconstitutionally vague applied him.
A. Sufficiency Evidence make two challenges suffi ciency evidence. First, they argue government failed present sufficient evidence agreements at issue fell outside statute’s safe harbor provisions. Then, they contend insufficient evidence jury determine they knowingly willfully violated Anti Kickback Statute.
When reviewing challenge sufficiency evidence, “we view light most favorable 15 2766 15 2821 13 the prosecution and ask whether any rational trier fact could have found the essential elements the crime beyond a reasonable doubt.” United States v. Salinas , F.3d (7th Cir. 2014) (citing Jackson v. Virginia , U.S. (1979)). We do reweigh evidence nor judge the credibil ‐ ity witnesses. United States v. Galati F.3d (7th Cir. 2000). “As long is a reasonable basis record for jury’s verdict, it must stand.” Id. (citation omitted).
Under U.S.C. § 1320a–7b(b)(2)(A), is a felony knowingly or willfully pay remuneration, directly or indirectly, refer person for a service for payment may be made, whole or part, under federal health care program. The statute’s corresponding regulations provide certain “safe harbors” protect liability payments made pursuant personal services contracts and rental agreements if they satisfy specific criteria. See C.F.R. § 1001.952(b) and (d). Generally, safe harbors exempt written agreements for space rental personal services if terms are less than year; compensation is consistent fair market values; services or space are reason ably necessary accomplish business goals contract ing entity. Id. These safe harbors, however, do protect any payment “takes into account value volume any referrals” services paid under federal health care program. Id. § 1001.952(b)(5) (c)(5).
The properly instructed application these safe harbor provisions, do not contend otherwise. Instead, they simply argue jury’s conclusions incorrect because showed leases, personal service contracts, teaching agreements met each the elements the respective safe harbor. How ever, there was ample the jury could determine arrangements at issue “[took] into account value volume referrals” doctors.
Doctor Shah signed contract spend hours per month developing cancer screening program at in exchange $2,000 per month. Shah testified it was his understanding he was actually required perform work outlined, instead, was required only bring patients Heart. Additionally, multiple witnesses testified that Kandala rarely Hospital, despite time sheets showing spent hours per month providing education on palliative hospice services. The jury heard re corded conversations between Kandala, Puorro, Novak discussing Kandala’s declining referral numbers, well as Novak’s desire make Kandala happy because “we need his over here.” Based evidence, reasonable jury could conclude agreements took into account physician’s potential referrals, thereby placing them outside safe harbor.
As teaching contracts, Doctor Noorlag testified attending podiatrists were already teaching residents as part their normal duties before creation separate teaching contracts. said were no additional duties created have justified additional payments made under contracts. Weiss, who one such contract, understanding being compensated bringing surgical cases The heard testimony indicating Doctors Moshiri and Maitra paid pursuant these contracts, but not ‐ perform all the corresponding duties. The jury also heard a conversation between Maitra Puorro, during which Maitra referenced the number referrals had made that he thought the should be paying him more.
Finally, the evidence regarding the lease agreement with May supported the jury’s conclusion. Puorro was recorded stating that the arrangement May was “a quid pro quo. We expect admissions sent Sacred Heart Hospital, otherwise doesn’t make financial sense us.” Clearly, indicates the consideration May’s potential referrals.
The evidence summarized here, outlined more detail above, when viewed the light most favorable the prosecu tion, certainly could have lead reasonable jury find that agreements took into account referrals doctors make Heart. Thus, because a reasonable basis jury conclude contracts were protected safe harbors, conclusion must stand. See Galati F.3d at 258.
Next, contend evidence presented at trial insufficient prove they knowingly willfully violated Anti Kickback Statute when they entered into arrangements issue. Again, however, there sufficient could have concluded both appellants knew contracts were illegal.
As initial matter, government presented evidence knowledge Anti Kickback Statute, its purpose, its prohibitions. The jury heard both men involved Hospital’s Corporate Compliance Program, produced manual dis cussed these very issues. Additionally, Sacred Heart’s outside counsel Joan Lebow testified she discussed the statute with appellants and counseled them its provisions. The jury saw numerous memoranda Lebow Novak and wherein she clearly set forth the types arrange ments statute prohibits.
Having established their knowledge statute, the government also presented ample evidence indicating that both Novak and played significant roles creation and oversight arrangements issue. Novak signed lease agreement with May, initial contract with Moshiri, and teaching contracts with Weiss and Maitra. He also reviewed signed mileage requests submitted by Szwajnos her travel May’s Kuchipudi’s clinics. signed second agreement with Moshiri, contract with Shah, amendment May’s lease agreement. addition, Noorlag, Director Podiatric Residency,
testified sought his input creating drafting language teaching contracts. Weiss testified that, discussion with Novak, understanding that teaching contract means compensating him for bringing surgical cases Noorlag testified directed him create paper files justifying teaching agreements, explained Noorlag, “if I go down this, you’re going down me.”
As further their knowledge, Shah discussed bringing both Novak and Nagelvoort before was offered a contract to develop a Cancer Screening Program. told Nagelvoort he could devote amount time contract required, and Nagelvoort told him “just sign contract.” Shah testified that, based on these conversations, believed only obligation bring patients Savage testified that Nagelvoort told her that provision PAs and NPs would create incentive for physicians refer their Heart. She that Nagelvoort oversaw this program and assigned professionals particular physicians. Payawal stated recorded conversa tion Nagelvoort responsible creating these arrangements and Novak knowledge them. All of could lead reasonable jury conclude and Nagelvoort knew they were compensating doctors referrals.
Finally, documents showed Nagelvoort provided Lebow false incomplete information when seeking her counsel legality these arrangements. On multiple occasions, consulting Novak, informed Lebow individual physicians would compensate PAs NPs provided them, when fact, Hospital paid those professionals. also told Lebow alone billing PAs’ NPs’ services, true. From evi dence, reasonable could make inference Novak knew arrangements illegal, but provided false information so obtain record approval their outside counsel.
Both Novak and argue that their numerous consultations Lebow showed their intent to ensure the contracts were legal. Novak similarly argues that many the recorded conversations the government presented were, in fact, exculpatory. contends that these conversations show was attempting follow the law and, therefore, cannot found have knowingly or willfully violated Anti ‐ Kickback Statute. For example, some these recordings, Novak is heard directing others make sure arrange ‐ ments were “kosher” employees and physicians were documenting work required under contracts.
However, jury heard rejected these arguments. Instead, it accepted government’s theory these conversations indicated knew these arrangements illegal they were attempting cover their tracks. This is reasonable inference based upon all evidence presented, is not for us decide jury wrong accept it. See Galati , F.3d (we will reweigh if there is reasonable basis the record verdict); see United States v. Hale F.3d 984–85 (7th Cir. 2006) (where there are competing views evidence, “[w]e will substitute our judgment jury’s”). sum, sufficient evidence, when viewed
light most favorable government, con clude both violated Anti Kickback Statute knowingly willfully. 19
B. Nagelvoort’s Challenge Admission of Coconspirator Statements Nagelvoort’s employment Sacred ended on April 28, 2011, when he went asked be terminated. The next day, sent a notice all the department managers Hospital informing them Nagelvoort no longer associated Heart. never returned not receive any payments benefits after date. argues, therefore, withdrew
conspiracy date, any coconspirator statements or conduct occurring after April 28, 2011, should have been held inadmissible against him. requested such instruction at trial, district court denied. Instead, court structed if found showed “that it’s more likely than withdrew alleged conspiracy of April 2011, then you may consider as against him statements made any alleged coconspirators date.”
We review district court’s decision admit coconspirator statements under Federal Rule Evidence 801(d)(2)(E) an abuse discretion. United States v. Pust , F.3d (7th Cir. 2015) (citation omitted). Any relevant findings fact are reviewed clear error. Id.
Under Rule 801(d)(2)(E), statements coconspirator are admissible against party if party member conspiracy statements made during course furtherance conspiracy. United States v. Powers F.3d (7th Cir. 1996) (citation omitted). Thus, if 15 2766 15 2821 no longer a member conspiracy after April 28, 2011, coconspirator statements made after date not admissible against him under that rule. It is defendant’s burden prove he withdrew from conspiracy. United States v. Hall , 212 F.3d 1016, 1023 (7th Cir. 2000). Ceasing one’s active participation in conspiracy, by itself, is sufficient prove withdrawal. United States v. Vallone , 752 F.3d 690, 697 (7th Cir. 2014) (citation omitted). Withdrawal requires “‘affirmative action … disavow or defeat purpose’ conspiracy.” Smith v. United States , S. Ct. 714, 720 (2013) (quoting Hyde v. United States , 225 U.S. (1912)). argues termination from Sacred Novak’s communication fact Hospi tal’s managers, he effectively withdrew from conspiracy as matter law, therefore, any coconspirator statements termination inadmissible against him. does contend took any other affirmative actions toward withdrawal, nor does argue such actions would have been necessary. As support, cites number cases our sister circuits, courts have found ending one’s relationship company sufficient establish withdrawal conspiracy occurring within company. See, e.g. , Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc. , F.3d 838–39 (11th Cir. 1999), amended part , F.3d (11th Cir. 2000); United States v. Nerlinger , F.2d 974–75 (2d Cir. 1988); United States v. Steele F.2d 793, 803–04 (3d Cir. 1982).
Our cases, however, require something more. We have held consistently simply ending one’s involvement 15 2766 15 conspiracy, even voluntarily, is not enough constitute withdrawal. See, e.g. , Vallone , 752 F.3d at 697 (defendant did not withdraw where perform an affirmative act “to defeat or disavow unlawful goal conspiracy”); United States v. Morales , 655 F.3d 608, 640 (7th Cir. 2011) (“neither retirement organization nor mere inactivity constitutes effective withdrawal” without affirmative act disavow the criminal objective); United States v. Julian , 427 F.3d 483 (7th Cir. 2005) (same). Here, no presented at trial, nor does now contend, took any additional action aimed at defeating disavowing the objectives conspiracy. The termination Nagelvoort’s employment alone does constitute withdrawal. points out in United States v. Wilson , we held “communication defendant fact his withdrawal manner designed reach his coconspirators” can suffice proof withdrawal. F.3d 863 (7th Cir. 1998). argues his request terminated the notice sent managers constitutes such a communication. We clarified holding, however, Vallone , where defendant made similar argument. United States v. Vallone , F.3d (7th Cir. 2012), vacated on other grounds sub nom. , Dunn v. United States , S. Ct. (2013), opinion modified reinstated , Vallone , F.3d 690. Expanding language Wilson we held “in order effectuate legally meaningful withdrawal conspiracy, defendant’s announcement must disavow conspiracy its criminal objectives.” Id. (internal quotation marks and alteration omitted). made no such disavowal. He simply expressed desire end employment ‐ ‐ Hospital. Thus, we agree the district court’s finding Nagelvoort had not carried burden of proving he had withdrawn the conspiracy as matter of law. The court not abuse its discretion, therefore, when it allowed the coconspirator statements into denied the limiting instruction Nagelvoort requested.
Nagelvoort then attempts to argue that, despite court’s findings, he prejudiced court’s decision allow the jury consider issue of withdrawal. We fail see any prejudice this may have caused. Based court’s instruc ‐ tion, jury could have determined Nagelvoort had withdrawn, case statements April 2011, could not considered against him. Particularly light the court’s finding proven withdrawal matter law, we fail see how prejudiced by allowing opportunity make contrary factual finding. If anything, it appears only could have benefitted instruction. Therefore, we do find any error court’s instruction.
C. Constitutionality Anti Kickback Statute Finally, contends Court’s interpreta tion Anti Kickback Statute renders unconstitutionally vague. Specifically, takes issue district court’s instruction, government’s argument same effect, statute is violated if “any part or purpose” payment remuneration induce referrals
We review issues statutory interpretation de novo . United States v. Ford F.3d (7th Cir. 2015) (citation omit 15 2766 & 15 ted). A challenge to a statute’s constitutionality is re ‐ viewed de novo . United States v. Sylla , F.3d 774 (7th Cir. 2015) (citation omitted).
A statute is unconstitutionally vague if it: “(1) does not provide a person ordinary intelligence a reasonable opportu nity know what is prohibited, or (2) fails to provide explicit standards prevent arbitrary discriminatory enforcement by those enforcing statute.” United States v. Plummer , F.3d (7th Cir. 2009) (citation omitted). Unless vagueness challenge implicates First Amendment, is case here, statute is analyzed as applied specific facts case. Id. argues allowing find a violation if “any part or purpose” payments meant induce referrals, statute is unconstitutionally vague. He contends “every contractual relationship a Hospital has doctor” might run afoul statute such an interpretation, one could know advance whether particular arrangement might deemed illegal by prosecutor. urges us, therefore, overturn our precedent adopt an interpretation (also set forth proposed jury instruction) payment or remuneration violates Anti Kickback Statute only if its “primary substantial purpose” is induce referrals.
We considered, rejected, almost identical theory in United States v. Borrasi , F.3d 781–82 (7th Cir. 2011). In fact, relies same case, United States v. Bay State Ambulance Rental Serv., Inc. F.2d (1st Cir. 1989), support argument defendant Borassi ‐ ‐ did. Bay State , First Circuit affirmed convictions district court instructed defendants were guilty only if payments made “primarily as [referral] induce ‐ ments.” F.2d at 30. That case persuade us Borassi , instead, we followed holdings Third, Fifth, Ninth, Tenth Circuits issue. See Borrasi , F.3d at (collecting cases). We held “if part payment compensated past referrals induced future referrals,” it constitutes violation Anti ‐ Kickback Statute. Id.
We see no reason overturn Borassi alter interpre ‐ tation now. We reject Nagelvoort’s contention our inter pretation statute criminalized otherwise “innocent, legitimate business arrangements conduct.” As we said in Borrasi “nothing [Anti Kickback Statute] implies only primary motivation remuneration is consid ered assessing” conduct issue. Id. We hold, therefore, Anti Kickback Statute is unconstitutionally vague applied Nagelvoort’s case.
III. CONCLUSION
For foregoing reasons, we affirm convictions both Nagelvoort.
[*] Of United States District Court Central District Illinois, sitting designation.