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Criminal Jury Instructions

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4.1-10  Receiving Kickbacks -- § 53a-161c (a) (2)

Revised to December 1, 2007

The defendant is charged [in count ___] with receiving kickbacks.  The statute defining this offense reads in pertinent part as follows: 

a person is guilty of receiving kickbacks when (he/she) knowingly (solicits / accepts / agrees to accept) any benefit, in cash or in kind, from another person upon an agreement or understanding that such benefit will influence such person's conduct in relation to referring an individual or arranging for the referral of an individual for the furnishing of any goods, facilities or services to such other person under contract to provide goods, facilities or services to a local, state or federal agency.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Benefit
The first element is that the defendant knowingly solicited, accepted or agreed to accept any benefit,1 in cash or in kind, from another person.  A person acts "knowingly" with respect to conduct when (he/she) is aware that (his/her) conduct is of such nature.  <See Knowledge, Instruction 2.3-3.>

For purposes of this statute, "person" means a human being and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, or a government or a governmental instrumentality.

"Benefit" means monetary advantage, or anything regarded by the beneficiary as a monetary advantage, including a benefit to any person or entity in whose welfare the defendant is interested.  It makes no difference that the defendant does not actually receive the benefit.  The crime is committed if the defendant merely agrees to accept such benefit on behalf of (himself/herself) or another. 

Element 2 - Contract
The second element is that the other person had a contract to provide goods, facilities or services to a local, state or federal agency.  Goods, facilities or services include buildings, facilities, supplies, materials, equipment, contractual services or any other goods, facilities or services.  A local, state or federal agency includes any commission, agency, department, officer, board, council, institution or other agency of a local, state or federal government. 

Element 3 - Intent
The third element is that the defendant (solicited / accepted / agreed to accept) this benefit upon an agreement or understanding that such benefit would influence the defendant's conduct in relation to referring an individual or arranging for the referral of an individual for the furnishing of any goods, facilities or services to such other person.  "Refer" means to send, direct or recommend and "referral" means the act of sending, directing or recommending.2

It is not necessary that the state prove that there was a formal or express agreement between the defendant and the other person.  It is sufficient to show that the parties knowingly and intentionally engaged in a mutual plan to influence the defendant's conduct in relation to referring an individual or arranging for the referral of an individual for the furnishing of any goods, facilities or services to such other person.  In addition, circumstantial evidence is sufficient to prove that there was an agreement because agreements or understandings of this nature are often formed in secret and only rarely can be proven other than by circumstantial evidence. 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant knowingly solicited, accepted or agreed to accept any benefit, in cash or in kind, from <insert name of person>, 2) <insert name of person> had a contract to provide goods, facilities or services to a local, state or federal agency, and 3) the defendant (solicited / accepted / agreed to accept) this benefit upon an agreement or understanding that such benefit would influence the defendant's conduct in relation to referring an individual or arranging for the referral of an individual for the furnishing of any goods, facilities or services to another person.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of receiving kickbacks, then you shall find the defendant guilty.  On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.
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1 For purposes of this subsection, "benefit" does not include the forms of remuneration listed in 42 C.F.R. § 1001.952 Medicare and State Health Care Programs.  General Statutes § 53a-161c (a).

2 General Statutes § 53a-161c (a).
 


 

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