Case: 24-1557 Document: 37 Filed: 04/14/2025 Pages: 18
`
`
`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 24-1557
`UNITED STATES OF AMERICA,
`
`Plaintiff-Appellee,
`
`v.
`
`MARK SORENSEN,
`
`Defendant-Appellant.
`____________________
`
`Appeal from the United States District Court for the
`Northern District of Illinois, Eastern Division.
`No. 1:19-cr-00745-1 — Franklin U. Valderrama, Judge.
`____________________
`
`ARGUED DECEMBER 4, 2024 — DECIDED APRIL 14, 2025
`____________________
`
`Before HAMILTON, JACKSON-AKIWUMI, and PRYOR, Circuit
`Judges.
`HAMILTON, Circuit Judge. This appeal tests some of the
`outer boundaries of the federal Anti-Kickback Statute, 42
`U.S.C. § 1320a-7b(b), which prohibits payments in return for
`referrals of patients for medical care that will be reimbursed
`under the federal Medicare or Medicaid programs. The Anti-
`Kickback Statute applies, for example, if a hospital or drug
`manufacturer pays a physician for referring a patient to the
`
`
`
`
`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 24-1557
`UNITED STATES OF AMERICA,
`
`Plaintiff-Appellee,
`
`v.
`
`MARK SORENSEN,
`
`Defendant-Appellant.
`____________________
`
`Appeal from the United States District Court for the
`Northern District of Illinois, Eastern Division.
`No. 1:19-cr-00745-1 — Franklin U. Valderrama, Judge.
`____________________
`
`ARGUED DECEMBER 4, 2024 — DECIDED APRIL 14, 2025
`____________________
`
`Before HAMILTON, JACKSON-AKIWUMI, and PRYOR, Circuit
`Judges.
`HAMILTON, Circuit Judge. This appeal tests some of the
`outer boundaries of the federal Anti-Kickback Statute, 42
`U.S.C. § 1320a-7b(b), which prohibits payments in return for
`referrals of patients for medical care that will be reimbursed
`under the federal Medicare or Medicaid programs. The Anti-
`Kickback Statute applies, for example, if a hospital or drug
`manufacturer pays a physician for referring a patient to the
`
`
`
`Case: 24-1557 Document: 37 Filed: 04/14/2025 Pages: 18
`
`2
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`No. 24-1557
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`hospital or for prescribing the manufacturer’s drug. The
`government seeks to extend the statute in this case to treat as
`federal crimes the defendant’s payments to advertising and
`marketing companies that worked with a manufacturer to sell
`orthopedic braces for Medicare patients. A jury found
`defendant-appellant Mark Sorensen guilty of one count of
`conspiracy and three counts of offering and paying kickbacks
`in return for referral of Medicare beneficiaries to his company,
`SyMed Inc. The district court denied his motion for judgment
`of acquittal.
`We reverse for insufficient evidence. The other individuals
`and businesses Sorensen paid were advertisers and a
`manufacturer. They were neither physicians in a position to
`refer their patients nor other decisionmakers in positions to
`“leverage fluid,
`informal power and
`influence” over
`healthcare decisions. United States v. George, 900 F.3d 405, 411
`(7th Cir. 2018), quoting United States v. Shoemaker, 746 F.3d
`614, 630 (5th Cir. 2014). Sorensen’s payments thus were not
`made for “referring” patients within the meaning of the
`statute. Because we reverse for insufficient evidence, we do
`not address Sorensen’s challenges to the district court’s jury
`instructions or evidentiary rulings.
`I. Factual and Procedural History
`Sorensen owned and operated SyMed Inc., a Medicare-
`registered distributor of durable medical equipment. In
`January 2015, Sorensen met with Bernard Perconti, the owner
`and operator of PakMed LLC, which was a durable medical
`equipment manufacturer; Christina Anderson, the head of
`Byte Success Marketing; and Dianne Chancellor of Dynamic
`Medical Management, a billing agency. Together, they agreed
`on a plan to advertise orthopedic braces to patients, to obtain
`
`
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`No. 24-1557
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`signed prescriptions from the patients’ doctors, to distribute
`the braces, and then to collect reimbursement from the federal
`Medicare program.
`The business model had several steps. First, Byte and
`another marketing firm called KPN published advertisements
`for orthopedic braces. Interested patients responded via
`electronic forms providing their names, addresses, and
`doctors’ contact information. This information was forwarded
`to call centers where a Byte or KPN sales agent would contact
`the patient to discuss ordering a brace and generating a
`prescription form. After collecting additional information,
`and with consent from patients to proceed, the sales agents
`faxed the prefilled but unsigned prescription forms to
`patients’ physicians. Byte’s prescription forms contained
`SyMed’s name and corporate logo and listed the devices to be
`ordered.
`Critical to our decision, the physicians who received these
`unsigned prescription forms then decided whether to sign
`and return the forms to SyMed and Dynamic for review—or
`to ignore them. Physicians declined 80 percent of the orders
`sent by KPN and regularly ignored forms sent by Byte.1 If a
`physician signed and approved a prescription, Sorensen’s
`company SyMed directed PakMed to ship the braces to pa-
`tients while Dynamic billed Medicare on behalf of SyMed.
`SyMed then paid PakMed 79 percent of funds collected from
`Medicare or other insurance, kept 21 percent as a service fee,
`
`1 The record does not specify more clearly the proportion of
`physicians who failed to return Byte’s prescriptions. At trial, Perconti
`testified that “the doctor would either return or not return the prescription
`signed,” and that Byte often made “multiple attempts to get a prescription
`back” from a doctor.
`
`
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`No. 24-1557
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`and out of that 21 percent also paid Dynamic for its role in
`billing. Out of its 79 percent share, PakMed paid the advertis-
`ing firms, KPN and Byte, based on the number of leads that
`each generated.2
`A federal grand jury indicted Sorensen on four counts.
`Count One charged Sorensen with conspiring to offer and pay
`remuneration, including kickbacks and bribes, for furnishing
`services for which payment may be made in whole or in part
`under a federal health care program in violation of 42 U.S.C.
`§ 1320a-7b(b)(2)(A), known more commonly as the Anti-
`Kickback Statute. Counts Two, Three, and Four charged
`Sorensen with substantive violations of the Anti-Kickback
`Statute on three specific payments.
`The case was tried to a jury. At the close of the
`government’s case, Sorensen moved for acquittal under
`Federal Rule of Criminal Procedure 29(a). The district court
`reserved judgment on his motion. The jury then found
`Sorensen guilty on all counts. Sorensen again moved for
`acquittal as well as for a new trial on all counts under Federal
`Rules of Criminal Procedure 29(c) and 33. In his Rule 29
`motion, Sorensen argued that the government did not prove
`his guilt beyond reasonable doubt because it did not establish
`his awareness of the scheme’s illegality. He also argued that
`conspiracy was unproven because there was no evidence that
`any of the alleged co-conspirators were aware of the
`supposed illegality of their agreement as of January 2015. The
`district
`court denied Sorensen’s post-trial motions.
`
`
`2 KPN generated most of the business. Over the course of the
`arrangement, SyMed—through PakMed—paid $11.6 million to KPN and
`only $1.8 million to Byte.
`
`
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`No. 24-1557
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`5
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`Characterizing the question as a “close call,” the court found
`that the evidence regarding willfulness allowed the jury to
`find beyond a reasonable doubt that Sorensen “knew from the
`beginning of the agreement in 2015 that the percentage fee
`structure and purchase of the doctor’s [sic] orders violated the
`law.” The district court sentenced Sorensen to 42 months in
`prison but released him on bond pending appeal.
`II. Analysis
`A. Standard of Review
`We review de novo a district court’s denial of a motion for
`a judgment of acquittal. United States v. Polin, 194 F.3d 863,
`865–66 (7th Cir. 1999). “[P]ractically speaking, however, the
`standard of review is that for sufficiency of the evidence.”
`United States v. Peterson, 823 F.3d 1113, 1120 (7th Cir. 2016). “In
`a sufficiency-of-the-evidence challenge after a jury verdict, we
`review the evidence presented at trial in the light most favor-
`able to the government and draw all reasonable inferences in
`its favor.” United States v. Anderson, 988 F.3d 420, 424 (7th Cir.
`2021). “We will overturn a conviction only if, after reviewing
`the record in this light, we determine that no rational trier of
`fact could have found the essential elements of the offense be-
`yond a reasonable doubt.” Id. We have sometimes described
`this hurdle as “nearly insurmountable,” but only “nearly,”
`not “completely.” Id., quoting United States v. Faulkner, 884
`F.3d 488, 492 (7th Cir. 2018); accord, United States v. Garcia, 919
`F.3d 489, 496–97 (7th Cir. 2019) (“[T]he height of the hurdle
`depends directly on the strength of the government’s evi-
`dence.” (quoting United States v. Jones, 713 F.3d 336, 339 (7th
`Cir. 2013)).
`
`
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`No. 24-1557
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`The government contends that plain-error review applies
`on the theory that Sorensen is relying on new arguments on
`appeal. We disagree. Sorensen has refined his arguments on
`appeal, but both of his Rule 29 motions before the district
`court included a general challenge to the sufficiency of the
`evidence. His Rule 29(a) motion argued broadly that the
`government’s evidence was “insufficient to sustain a
`conviction on the charge of conspiracy to pay and receive
`bribes and kickbacks, as charged in Count One, and offering
`and paying bribes and kickbacks, as charged in Counts Two
`through Four.” Dkt. 196 at 2. Similarly, his Rule 29(c) motion
`argued broadly that “there was insufficient evidence to
`support the jury’s guilty verdict” on all counts, and that
`motion included more specific arguments, as well. Dkt. 200 at
`2. The arguments Sorensen raises on appeal are within the
`scope of his broad arguments in the written motions and his
`oral arguments in the district court. In the district court, he
`asserted that advertising medical supplies or related products
`is “completely lawful.” Dkt. 211 at 1243. He also argued that
`obtaining authorization to contact a patient’s physician
`regarding a potential prescription for medical care is both
`“lawful and appropriate.” Dkt. 211 at 1243.
`Precedent teaches that when an accused defendant moves
`for judgment of acquittal and raises specific arguments, any
`omitted arguments are forfeited and subject to only plain-
`error review on appeal. E.g., United States v. Hosseini, 679 F.3d
`544, 550 (7th Cir. 2012). We have also recognized, though, that
`a general Rule 29 motion preserves all sufficiency arguments
`
`
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`for appeal. E.g., United States v. Maez, 960 F.3d 949, 959 (7th
`Cir. 2020).3
`This approach to forfeiture creates an unusual incentive
`for defendants to present vague arguments to the district
`court in Rule 29 motions. See United States v. Kieffer, 991 F.3d
`630, 637–41 (5th Cir. 2021) (Oldham, J., concurring) (observing
`that allowing a general Rule 29 motion to preserve all
`sufficiency arguments “encourages defendants to say as little
`as possible in the district court and to save their good
`arguments as ‘gotchas!’ for appeal”). We have expressed
`skepticism about this approach because of the perverse
`incentives it creates. See United States v. Rivers, 108 F.4th 973,
`978 n.1 (7th Cir. 2024) (acknowledging that “the perverse
`incentives” created by forfeiture rule “dissuade defendants
`from making specific arguments in a Rule 29 motion”).
`In any event, though, Sorensen did not forfeit his appellate
`arguments in the district court. He filed one broad Rule 29
`motion challenging the sufficiency of the evidence and
`another, more specific Rule 29 motion. In such cases, our
`colleagues in other circuits have allowed the broad motion to
`preserve for appeal specific arguments not raised in the more
`narrowly focused motion. See, e.g., United States v. Facteau, 89
`F.4th 1, 39 n.26 (1st Cir. 2023) (applying de novo review to
`specific Rule 29(c) motion because defendant’s earlier Rule
`29(a) motion asserted a general challenge to the sufficiency
`the evidence and adequately preserved the issue for appeal);
`
`
`3 In Maez we wrote: “A motion under Rule 29 that makes specific ar-
`guments waives issues not presented, but a general motion preserves
`every objection,” 960 F.3d at 959, though it would be more precise to say
`that other specific issues are forfeited rather than waived.
`
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`No. 24-1557
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`United States v. Hammoude, 51 F.3d 288, 291 (D.C. Cir. 1995)
`(second, broader Rule 29 motion was stated broadly and
`preserved full range of challenges to sufficiency of evidence);
`see also United States v. Marston, 694 F.3d 131, 135 (1st Cir.
`2012) (noting good reason to treat an ambiguous Rule 29
`motion as “general” in the sense that it preserves all grounds
`and thus avoids creating “a trap for the unwary defense
`lawyer”).
`Here, Sorensen’s Rule 29(a) motion presented a general
`challenge to the sufficiency of the evidence. His later Rule
`29(c) motion refined that broad challenge but also preserved
`it. Under the reasoning of Facteau and Hammoude, the more
`specific motion thus did not forfeit specific arguments not
`raised. Sorensen’s arguments in support of his Rule 29
`motions were also consistent with those he advances on
`appeal to show that the advertising scheme did not violate the
`statute as a matter of law. Taken together, Sorensen’s motions
`and his arguments in support of those motions preserved the
`arguments he makes on appeal. We therefore apply de novo
`review, giving the government and the jury verdict the benefit
`of conflicting evidence and reasonable inferences that could
`be drawn from it.4
`
`
`4 To the extent that a fear of sandbagging animates Rule 29 forfeiture
`jurisprudence, there is no cause for concern here. In the district court,
`Sorensen provided ample notice to the government of his view that his
`conduct did not fall under the Anti-Kickback Statute as a matter of law.
`The government was not blindsided by the arguments on appeal. In
`addition, the district court considered both motions, and the arguments
`we find persuasive on appeal were within the scope of the Sorensen’s
`broad motion and implicit in his more specific challenges to evidence of
`criminal intent in the district court.
`
`
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`9
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`B. The Anti-Kickback Statute
`Turning to the essential elements of the offense, the Anti-
`Kickback Statute provides in relevant part:
`(2) Whoever knowingly and willfully offers or
`pays any
`remuneration
`(including any
`kickback, bribe, or rebate) directly or indirectly,
`overtly or covertly, in cash or in kind to any
`person to induce such person–
`(A) to refer an individual to a person for the
`furnishing or arranging for the furnishing of
`any item or service for which payment may
`be made in whole or in part under a Federal
`health care program … shall be guilty of a
`felony….
`42 U.S.C. § 1320a-7b(b)(2)(A).
`The Anti-Kickback Statute primarily targets payments to
`individuals with influence over or access to patients that lets
`them control or influence the patients’ choices about medical
`care. The typical example is a physician who accepts money
`in exchange for sending patients to a particular healthcare
`provider such as a hospital or a specialist. See, e.g., United
`States v. Nagelvoort, 856 F.3d 1117, 1120 (7th Cir. 2017)
`(affirming convictions where hospital paid physicians for
`referrals); United States v. Patel, 778 F.3d 607, 608–09 (7th Cir.
`2015) (affirming convictions where physician received
`payments for signing orders authorizing home health
`services); United States v. Borrasi, 639 F.3d 774, 776 (7th Cir.
`2011) (affirming conviction where hospital paid physician for
`Medicare patient referrals).
`
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`The statute can reach non-physicians, as well, although
`such cases seem to be much less common among those
`prosecuted. See, e.g., George, 900 F.3d at 409–10, 414 (affirming
`conviction of home healthcare referral agency employee); see
`also Polin, 194 F.3d at 866–67 (affirming conviction for
`payments to sales representative for pacemakers whose
`recommendations for outside monitoring services had never
`been overruled by physicians: “The different subsections [of
`the Anti-Kickback Statute] do not distinguish between
`physicians and lay-persons.”).5
`C. Inducing Referrals
`For a payment to fall within the prohibitions of 42 U.S.C.
`§ 1320a-7b(b)(2)(A), a payor must act with the intent to induce
`referrals from the payee. See George, 900 F.3d at 411
`(defendant’s conduct fell “squarely within the statute … in
`that her conduct represented an intent to induce referrals” to
`home healthcare provider). Our “focus on intent, not titles or
`formal authority” is consistent with “Congress’s concerns in
`enacting the statute—to broaden liability to reach operatives
`who
`leverage fluid,
`informal power and
`influence.”
`Shoemaker, 746 F.3d at 629–30. Nevertheless, a payee’s position
`
`
`5 One unusual feature of this case is that if Sorensen, Perconti, and the
`advertisers had all worked for the same company, their actions apparently
`would not be viewed as federal crimes. To align incentives, employers
`regularly structure compensation based on how much business
`employees generate. The Anti-Kickback Statute recognizes this common
`practice. Among its exclusions, for example, the statute contains a safe
`harbor provision, 42 U.S.C. § 1320a-7b(b)(3)(B), that exempts payments by
`“an employer to an employee (who has a bona fide employment
`relationship with such employer) for employment in the provision of
`covered items or services….”
`
`
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`can be relevant in determining the purpose of a payment. See
`Patel, 778 F.3d at 615 (discussing physician’s particular
`incentive to authorize unnecessary care if receiving referral
`payments); see also United States v. Marchetti, 96 F.4th 818, 826
`(5th Cir. 2024) (“[A]s between payment to a rancher and a
`doctor, it is dramatically easier to infer intent improperly to
`induce medical referrals from the doctor.”).
`Physicians have significant power to guide patients to
`specific providers and
`to approve care. They sign
`prescriptions and authorize specialized treatments. See Patel,
`778 F.3d at 616 (describing physician’s unique role as
`“gatekeeper to federally-reimbursed care”). As a result, a
`payor’s intent to induce a referral when offering to pay a
`physician can be clear, at least when the physician is
`providing no other benefit to the payor.
`Our inquiry here, however, involves payments to non-
`physicians. In these less common cases, we consider whether
`a payee “leverage[s] fluid, informal power and influence”
`over healthcare decisions. George, 900 F.3d at 411 (affirming
`convictions of non-physician payee), quoting Shoemaker, 746
`F.3d at 630. A payee’s formal authority to authorize Medicare-
`covered services is not necessary to violate the statute. See
`George, 900 F.3d at 411–12 (affirming convictions and rejecting
`argument that defendant did not fall under statute because
`“the persons she referred [also] had to be certified by a
`physician before they could be admitted”); see also Polin, 194
`F.3d at 866 (rejecting reading of statute that would criminalize
`payments to physicians who selected pacemaker monitoring
`service providers but not payments to pacemaker salesperson
`who
`influenced and effectively controlled physicians’
`choices). We find nothing in George or Polin, however, that
`
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`No. 24-1557
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`would extend their reach to payments for aggressive
`advertising efforts, as distinct from payments to individuals
`who take advantage of their existing relationships with
`patients or other health care providers, which was the case in
`both George and Polin.
`In this case, there simply is no evidence that the entities
`Sorensen paid—PakMed, KPN, and Byte—leveraged any sort
`of informal power and influence over healthcare decisions.
`Sorensen’s payments to these entities therefore did not violate
`the Anti-Kickback Statute. KPN and Byte provided only
`advertising services. PakMed actually manufactured and
`distributed the braces that were ultimately sold and
`reimbursed through Medicare. It did not refer any patient to
`another healthcare provider.
`Before this case, we have not had occasion to consider the
`Anti-Kickback Statute’s application to advertising activities.
`We find guidance in several Fifth Circuit decisions, starting
`with United States v. Miles, 360 F.3d 472 (5th Cir. 2004). In
`Miles, the Fifth Circuit overturned convictions under the Anti-
`Kickback Statute where a Medicare-registered home
`healthcare provider paid a public relations firm. Citing our
`decision in Polin, the Fifth Circuit explained that there are
`“certain situations where payments to non-doctors would fall
`within the scope of the statute,” but the court distinguished
`between a payment to induce referrals from a payee who is in
`a position to make or influence healthcare decisions, which
`violates the statute, and a payment for advertising services,
`which does not. Miles, 360 F.3d at 480–81, citing Polin, 194 F.3d
`at 864–65.
`The Fifth Circuit distinguished the public relations firm in
`Miles
`in Polin—whose
`from
`the sales representative
`
`
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`recommendations on pacemaker monitoring services “had
`never been overruled by a physician during his fourteen year
`career.” Polin, 194 F.3d at 865. The Fifth Circuit held that
`payments to the public relations firm were not illegal
`kickbacks. In Polin, the sales representative’s “judgment was
`shown to have been improperly influenced by the payments
`he received” because he was the decisionmaker—evidenced
`by the fact that his choices of service providers had never been
`overruled in fourteen years. See Miles, 360 F.3d at 481. In
`Miles, by contrast, the public relations firm “supplied
`promotional materials” to physicians and occasionally
`“plates of cookies to doctors’ offices.” Id. at 479–80. These
`influences did not prevent physicians from deciding
`independently whether to authorize care and which provider
`to choose for their patients. Id. at 480–81.
`The facts here resemble Miles much more closely than
`Polin. In Miles there “was no evidence that [the advertiser]
`had any authority to act on behalf of a physician ….” Id. at
`480. Similarly, here the government has produced no
`evidence that Sorensen, PakMed, KPN, or Byte authorized
`medical care. Nor did they “unduly influence the doctors’
`decisions.” Id. at 480. With patients’ consent, KPN and Byte
`faxed
`unsigned
`prescriptions—containing
`patient
`information and the specified device to be ordered—to
`physicians. The physicians retained full discretion to
`determine whether to prescribe the advertised care. In many
`cases, physicians decided not to do so. As the government
`acknowledges, 80 percent of the blank prescriptions sent by
`KPN and many sent by Byte simply were not returned.
`This is a far cry from Polin, where the physicians’ approval
`“seemed to be more of a formality or rubber stamping” of the
`
`
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`sales representative’s referral. 194 F.3d at 866. Unlike Polin,
`KPN and Byte’s communications to physicians are best
`understood as proposals for care, not as referrals. And to the
`extent they might be deemed “recommendations” to
`physicians, they were frequently overruled. Sorensen’s
`scheme also differs from the one held illegal in George. 900
`F.3d at 411. There, the defendant’s conduct fell “squarely
`within the statute” because she leveraged her existing
`relationships with and informal power and influence over
`doctors to direct Medicare patients to a specific home
`healthcare provider in exchange for cash payments. Id. at 408–
`11. Here, in contrast, the marketers did not—and indeed were
`not even positioned to—exert such influence over the doctors
`prescribing care.
`The key point is that, on this record, physicians always
`had ultimate control over their patients’ healthcare choices
`and applied independent judgment in exercising that control.
`Nobody is accused here of paying any kickbacks to any
`physicians.6 As for PakMed, its role was to manufacture and
`ship the braces. It never directly contacted patients or
`physicians. The fact that SyMed shared revenue with PakMed
`on a percentage basis does not render the arrangement illegal.
`“[P]ercentage-based compensation structures are not per se
`unlawful.” Marchetti, 96 F.4th at 831. Instead, to violate the
`
`
`6 During oral argument we asked whether it should affect our analysis
`if 100 percent of doctors instead of only 20 percent had signed the
`proposed prescriptions they received. We are not adopting any bright-line
`rule. Our focus is on whether a payee exerts informal but substantial
`influence so that a physician’s choice of care becomes a formality rather
`than an exercise of independent medical judgment. That was the case in
`Polin but not here.
`
`
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`statute, “the payments have to be made in order to induce an
`unlawful referral,” which “requires proof beyond showing
`that a percentage-based compensation contract existed.” Id.
`We also take guidance from the Fifth Circuit’s 2024
`decision in Marchetti, which affirmed Marchetti’s conviction
`for receiving illegal kickbacks on a narrow basis but
`determined that most of his actions had not violated the Anti-
`Kickback Statute. 96 F.4th at 824. The government’s case
`focused on Vantari Genetics LLC, a medical laboratory that
`specialized
`in pharmacogenetic
`testing. Vantari paid
`Marchetti, owner of a sales and marketing company, a
`percentage of revenue that the Vantari laboratory received
`from each Medicare patient whom Marchetti attracted to the
`laboratory with his advertising and marketing. Id. at 821–22.
`Although the government introduced evidence showing that
`Marchetti was compensated for these supposed “referrals”
`and that he and Vantari obfuscated the structure of these
`payments, it failed to offer any evidence that Marchetti
`exercised any impermissible influence on “those who make
`healthcare decisions on behalf of patients.” Id. at 827. The
`closest the government came to “providing the missing link
`[was] its assertion that Marchetti had ‘relationships with,
`access to, and influence over’ doctors.” Id. But clearly “not
`every sort of influence is improper.” Id. After all, the purpose
`of advertising is to influence decision making: “What are
`advertisers hired to do anyway?” Id.
`Marchetti’s conviction was ultimately affirmed, however,
`based on his later work for two competing laboratories. In
`those roles, Marchetti decided which of the competing
`laboratories received patient samples. He also “motivated
`Vantari to align
`its swab-related protocols with [the
`
`
`
`Case: 24-1557 Document: 37 Filed: 04/14/2025 Pages: 18
`
`16
`
`No. 24-1557
`
`competing laboratory’s] to streamline the process of servicing
`both.” 96 F.4th at 827. In short, a rational trier of fact could
`have found that by choosing between the two competing
`laboratories, Marchetti himself had become a “relevant
`decision maker,” and payments made to him were intended
`to induce his referrals. Id. Marchetti’s conduct in that role was
`“much more like the hypothetical that Miles explicitly said
`would constitute an [Anti-Kickback Statute] violation:
`Medical service provider pays salesman, salesman makes
`choice about service provider, salesman is never overruled.”
`Id. Note that the hypothetical discussed there referred to the
`facts in our decision in Polin, where we affirmed the
`conviction.
`As in Marchetti, the central question we confront here is
`whether Sorensen intended to “induce ‘referrals,’ which is
`illegal,” or whether he intended to “compensate advertisers,
`which is permissible.” 96 F.4th at 825, quoting Shoemaker, 746
`F.3d at 628. Marchetti illustrates why Sorensen’s payments
`were legal compensation for advertisers. The court held much
`of Marchetti’s conduct lawful because the prosecution did not
`show that Marchetti had any special relationship with or
`influence over the relevant decisionmakers—specifically, the
`doctors responsible for selecting laboratories for patient
`sample testing. Id. at 827. Similarly, here, there is no evidence
`that anyone whom Sorensen paid had any special
`relationship with or influence over patients’ physicians so as
`to subject them to improper influence. As previously
`discussed, the sales agents whom Sorensen paid had received
`consent from patients before faxing unsigned prescriptions to
`their physicians for review. Those physicians were not rubber
`stamps but more often than not decided not to authorize the
`requested care.
`
`
`
`Case: 24-1557 Document: 37 Filed: 04/14/2025 Pages: 18
`
`No. 24-1557
`
`17
`
`Because no evidence suggests that Sorensen or his
`associates exerted any sort of special informal influence on the
`physicians making healthcare decisions, his conduct did not
`violate the Anti-Kickback Statute. Cf. Shoemaker, 746 F.3d at
`626–29 (reversing judgment of acquittal where nurse staffing
`business paid hospital executive in exchange for pressuring
`hospital to hire staffing company’s nurses and pay invoices
`on time; staffing company paid the executive “to exploit his
`personal access” to contracting authorities at the hospital);
`United States v. Vernon, 723 F.3d 1234, 1254–56 (11th Cir. 2013)
`(affirming conviction of patient advocate who referred
`patients to specialty pharmacy in exchange for payment;
`patients “did not even know which pharmacy filled their
`prescriptions because they gave control” of pharmacy
`selection to patient advocate); Guilfoile v. Shields, 913 F.3d 178,
`192–93 (1st Cir. 2019) (scheme where payee with power to
`steer hospital contracts accepts payment in exchange for
`referring clients to payor “is in the heartland of what the
`[Anti-Kickback Statute] is intended to prevent….”).
`Finally, the government relies on Sorensen’s July 2019
`interview with federal law enforcement agents to show his
`consciousness of wrongdoing. During
`the
`interview,
`Sorensen appeared to acknowledge that paying for doctors’
`orders or compensating marketing firms on a percentage
`basis may be illegal. He also denied engaging in either
`practice. The interview does not save the convictions.
`Sorensen did not pay for doctors’ orders. Instead, he paid
`KPN and Byte to find interested patients and paid PakMed to
`manufacture and distribute braces. Sorensen recognized that
`the
`government might
`question
`the
`contractual
`arrangements, but his statements in the interview simply did
`
`
`
`Case: 24-1557 Document: 37 Filed: 04/14/2025 Pages: 18
`
`18
`
`No. 24-1557
`
`not show that he was paying anyone for patient referrals
`within the scope of the statute.
`Physicians and non-physicians alike may exert formal or
`informal influence on patients’ choice of healthcare providers,
`taking advantage of their existing relationships to reduce
`competition and harm patients at the expense of Medicare
`and the taxpayers who pay for it. The text of the Anti-
`Kickback Statute and sound public policy support punishing
`payments
`to
`induce such
`influence. Here, however,
`Sorensen’s payments to PakMed, KPN, and Byte were made
`in exchange for ordinary and legal services—advertising,
`manufacturing, and shipping products—not for referrals. We
`express no view on the general social value of aggressive and
`even pesky advertising campaigns like Sorensen’s, which
`may cause unnecessary expenditures on medical devices or
`other forms of health care. But aggressive advertising efforts
`are not equivalent to unlawful referrals of patients. Because
`there was no evidence that would allow a reasonable jury to
`find beyond a reasonable doubt that Sorensen paid or agreed
`to pay anyone for referring patients within the meaning of the
`Anti-Kickback Statute, the district court’s
`judgment is
`REVERSED.
`
`
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