Schena

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2989 D.C. No. Plaintiff - Appellee, 5:20-cr-00425-

EJD-1

v.

MARK SCHENA,

OPINION

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Argued and Submitted February 11, 2025 Honolulu, Hawaii

Filed July 11, 2025

Before: Sidney R. Thomas, Daniel A. Bress, and Ana de Alba, Circuit Judges.

Opinion by Judge Bress SUMMARY *

Criminal Law

The panel affirmed Mark Schena’s convictions for violating the Eliminating Kickbacks in Recovery Act (EKRA), which criminalizes, among other things, the payment of “remuneration . . . to induce a referral of an individual to a recovery home, clinical treatment facility, or laboratory.” 18 U.S.C. § 220(a)(2)(A). The panel interpreted this 2018 law for the first time, as to a laboratory operator who made payments to marketing intermediaries to induce referrals for medically dubious allergy tests. Schena operated medical testing laboratory Arrayit. He argued that § 220(a)(2)(A) covers only payments made…