United States of America v. Mark Sorensen

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1557
U NITED STATES OF A MERICA ,
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.
____________________
A RGUED D ECEMBER 4, 2024 — D ECIDED A PRIL 14, 2025
____________________
Before HAMILTON, J ACKSON-A KIWUMI, and P RYOR , 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

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2 No. 24-1557
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 3
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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4 No. 24-1557
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 5
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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6 No. 24-1557
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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No. 24-1557 7
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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8 No. 24-1557
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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No. 24-1557 9
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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10 No. 24-1557
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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No. 24-1557 11
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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12 No. 24-1557
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 from the sales representative in Polin—whose

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No. 24-1557 13
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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14 No. 24-1557
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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No. 24-1557 15
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

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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.

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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

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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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