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4.1-12 Paying a Kickback -- § 53a-161d (a) (1)
Revised to December 1, 2007
The defendant is charged [in count ___] with paying a kickback. The statute defining this offense reads in pertinent part as follows:
a person is guilty of paying a kickback when (he/she) knowingly offers or pays any benefit, in cash or kind, to any person with intent to influence such person to refer an individual, or to arrange for the referral of an individual, for the furnishing of any goods, facilities or services for which a claim for benefits or reimbursement has been filed with 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 offered or paid any benefit, in cash or kind, to 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.>
"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 (he/she) is interested. It makes no difference that the beneficiary does not accept or receive the benefit. The crime is committed if the defendant merely makes the offer to confer such a benefit.
For purposes of this statute, "person" is defined as a human being and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, a government or a governmental instrumentality.
Element 2 - Intent to influence
The second element is that the
defendant specifically intended to influence another person to refer an
individual or to arrange for the referral of an individual for the furnishing of
any goods, facilities or services. "Refer" means to send, direct or recommend
and "referral" means the act of sending, directing or recommending.1
Goods, facilities or services includes
buildings, facilities, supplies, materials, equipment, contractual services or
any other goods, facilities or services.
A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>
Element 3 - Claim filed
The third element is that a claim for
benefits or reimbursement for such goods, facilities or services had been filed
with a local, state or federal agency. 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.
Conclusion
In summary, the state must prove beyond a reasonable doubt that 1) the defendant knowingly offered or paid any benefit, in cash or kind, to <insert name of person>, 2) the defendant intended to influence <insert name of person> to refer an individual or to arrange for the referral of an individual for the furnishing of any goods, facilities or services, and 3) a claim for benefits or reimbursement was filed with a local, state or federal agency.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of paying
a kickback, 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 General Statutes § 53a-161c (a).