United States v. Morris Pardee Adkins, M.D., and Franklin Dalano Holefield

Defendants Adkins and Holefield appeal their conviction for violation of both 42 U.S.C. § 1396h(b)(l)(A) (Supp. Ill 1979) (receiving kickbacks for medicaid referrals) and 18 U.S.C. § 371 (1976) (conspiracy). Our jurisdiction rests on 28 U.S.C. § 1291 (1976). We reverse.

Defendant Adkins, a medical doctor, allegedly received kickbacks from MSI Laboratories, a clinical laboratory, for referring his medicaid and medi-eal patient lab work to MSI. Defendant Holefield, a friend of Dr. Adkins, allegedly aided and abetted the kickback scheme as the payee of the kickback checks from MSI. An indictment charged both Adkins and Holefield with three counts for violations of 42 U.S.C. § 1396h(b)(l)(A) and one count for conspiracy to violate section 1396h(b)(l)(A). Section 1396h(b)(l)(A) provides:

(emphasis added). Both parties agree that no individual patients traveled from Dr. Adkin’s office to MSI; instead Dr. Adkins sent patient urine and blood specimens to MSI for analysis.

In United States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804 (9th Cir. 1981), we held that an indictment charging a violation of section 1396h(b)(2)(A) (payment of kickbacks for medicaid referrals) could not be…