Full opinion text
MEMORANDUM AND ORDER LUNGSTRUM, District Judge. On April 5, 1999, following a nine week trial, a jury convicted the three defendants remaining in this case of various Medicare kickback offenses. On August 16, 1999, the court held a status conference to discuss objections by the parties to the sentencing recommendations set forth in the Presentence Investigation Reports (PSIRs). As a result, the court ordered the parties to brief the issues raised in their objections (doc. 461). These papers are now before the court. In its brief, the government objects to the PSIRs’ failure to recommend “vulnerable victim” enhancements and “role in the offense” enhancements to the defendants’ sentences. The government also objects to the application of a “special skills” enhancement to the defendants’ sentences. Further, the government asks the court to order each defendant to make restitution. In their briefs, each of the defendants objects to the following: the version of the offense stated in the PSIRs, the “use of special skills” or “abuse of trust” enhancement to their sentences, and the method used by the PSIRs to calculate the amount of the bribes made by the LaHues and paid by Baptist Medical Center (Baptist) at the discretion of Mr. Ahderson. Mr. Anderson and Ronald LaHue also seek a “mitigating role” reduction in their sentences. Further, Robert LaHue objects to the PSIR recommendation that an “obstruction of justice” increase be added to his sentence. Finally, Ronald LaHue requests that the court not impose a fine upon him. The court is well aware of the facts in this case, having presided over the nine week trial, and is now prepared to rule. For the reasons set forth below, the court overrules the government’s objection as to the “vulnerable victim” enhancements. The court sustains the government’s objection as to the “role in the offense” enhancements for Robert LaHue and Mr. Anderson, but overrules the objection as to Ronald LaHue. The court sustains the parties’ objections as to the “use of special skills” enhancements. The court sustains the defendants’ objections as to the version of the offense and as to the “abuse of trust” enhancements. The court overrules Mr. Anderson’s and Ronald LaHue’s objections as to the “mitigating role” reduction. The court sustains in part, overrules in part, and defers deciding in part the defendants’ objections to the calculation of the amount of the bribes. Finally, the court defers deciding the government’s objection as to restitution, Robert LaHue’s objection as to “obstruction of justice,” and Ronald LaHue’s objection as to the imposition of a fine. I. Background Defendants Drs. Robert and Ronald La-Hue are osteopathic physicians and were the longtime principals of a. now-defunct organization called Blue Valley Medical Group (“BVMG”). BVMG was wholly owned by Robert LaHue, and Ronald La-Hue was at all times a key employee. The LaHues built their practice by treating patients in nursing homes, rather than operating out of a clinic. Defendant Dan Anderson was the President and Chief Executive Officer of Baptist. As discussed in the court’s July 21, 1999 order, evidence presented at trial showed that the LaHues entered into agreements with a number of hospitals, including Baptist, under which the LaHues would refer patients to a particular hospital in exchange for various forms of compensation by the hospitals. This evidence was enough to convince the jury that the defendants committed conspiracy pursuant to 18 U.S.C. § 371 and violations of the Medicare Anti-Kickback Act pursuant to 42 U.S.C. § 1320a-7b(b). The court is left with the task of sentencing the defendants in accordance with the United States Sentencing Guidelines (U.S.S.G.). II. Vulnerable Victim Enhancement The government’s first objection is that the PSIRs do not recommend a two-level “vulnerable victim” enhancement to the defendants’ sentences. The crux of the government’s argument is that the elderly patients treated and referred by the La-Hues were “vulnerable victims.” U.S.S.G. § 3Al.l(b)(l) requires a two level enhancement “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” Pursuant to sentencing commission commentary, a “vulnerable victim” is “a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct) and (B) is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. 2. The defendants do not dispute that the elderly patients of BVMG who were the subject of the referral scheme were “vulnerable,” rather, the key question is whether the elderly patients of BVMG were “victims.” Because the government has presented no evidence that the patients suffered any actual or intended harm or loss, the court determines that they were not “victims” and overrules the government’s objection. Although the Tenth Circuit has not specifically defined "victim" in this context, the case law almost uniformly suggests that a "victim" can only be a person who suffers actual or intended harm or loss. See United States v. Whitlow, No. 96-3246, 1997 WL 546003, 1997 U.S.App. LEXIS 23531, at *8-9 (10th Cir. Sept. 5, 1997) (defendant called elderly people, told them that he was their grandson, and requested money); United States v. Gill, 99 F.3d 484, 485 (1st Cir.1996) (defendant treated mental health patients after falsely telling them that he was a licensed psychologist); United States v. Bachynsky, 949 F.2d 722, 736 (5th Cir.1991) (defendant falsified patient diagnoses and provided bogus treatments in order to receive enhanced payments from medical insurers and Department of Defense); United States v. Echevarria, 33 F.3d 175, 180 (2d Cir.1994) (defendant "directly targeted those seeking medical attention by posing as a physician, exploiting their impaired condition and luring them to his inadequate and dangerous medical attention for the purposes of defrauding third-party medical insurers"); United States v. Borst, 62 F.3d 43, 48 (2d Cir.1995) (defendant’s criminal activity of defrauding banks in connection with brokering of loans for financially destitute borrowers was subject to enhancement because defendant’s criminal conduct caused specific financial and other loss to the destitute borrowers); United States v. Wright, 160 F.3d 905, 909 (2d Cir.1998) (residents of mentally retarded care facility were vulnerable victims where embezzlement of monies of care facility deprived residents of any semblance of adequate care); United States v. Burgos, 137 F.3d 841, 844 (5th Cir.1998) (patients of psychiatrist who committed billing fraud were vulnerable victims because they suffered harm; they were often needlessly admitted to the hospital and their stays were extended due to efforts to exhaust their insurance benefits); United States v. Yount, 960 F.2d 955, 956 (11th Cir.1992) (institutionalized elderly were vulnerable victims where defendant bank employee embezzled funds from their accounts even though bank ultimately reimbursed the accounts; defendant intended to embezzle money from trust accounts of elderly and had he not gotten caught the account holders would have lost their money). The government argues that if a person is used as an instrumentality of the defendant’s crime, then that person is a “victim,” regardless of not having suffered harm or loss. All but one of the cases that the government cites, however, involve victims who have suffered actual or intended harm or loss. Furthermore, the court declines to follow United States v. Stewart, 33 F.3d 764 (7th Cir.1994), the one case holding that “victims” need not have suffered a concrete loss. The Stewart court held that the district court committed clear error in refusing to enhance for vulnerable victims where the defendant’s scheme was to defraud funeral homes by inducing them to sell burial expense annuity arrangements to elderly customers. Stewart, 33 F.3d at 770. The funeral homes forwarded the defendant cash paid by elderly customers to purchase annuities, but the defendant embezzled the cash. See id. at 771. Although the funeral homes ultimately performed all the services that the elderly paid for, such that the elderly lost nothing, the court determined that the elderly were “vulnerable victims.” See id. at 770-71. The Stewart court came to this finding by analogizing the facts in the case before it to the facts in United States v. Newman, 965 F.2d 206 (7th Cir.1992). Id. at 771 (“Thus, as in Newman, the defendant in this matter made his elderly clients the innocent instruments of his scheme ....”). Newman, however, involved a vulnerable 20-year-old who was threatened with harm and raped in order to induce her to defraud her family. Newman, 965 F.2d at 211-12. The Newman court held that the “vulnerable victim” enhancement should be applied, even though the vulnerable person and the people who lost money were different. The Newman holding does not apply to the facts in Stewart, or in this case, because in Newman the vulnerable person was harmed. In Stewart and in this case, however, the elderly were not harmed. Thus-, Stewart was decided on faulty reasoning. The court further declines to rely on Stewart because a now-superseded version of the sentencing guidelines may have influenced the Stewart court’s conclusion. Under the guidelines then in effect, enhancement was appropriate if “an unusually vulnerable victim is made a target of criminal activity.” See U.S.S.G. app. C, amend. 521. In contrast, under the guidelines applicable to Mr. Anderson and the Drs. LaHue, enhancement is appropriate only if there is “a person (A) who is a victim of the offense of conviction and any conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable ....” U.S.S.G. § 8A1.1 cmt. 2. The elderly in Steivart might be said to be “a target of criminal activity” under the then-applicable guidelines, even though they might not be “victimfs] of the offense of conviction and any [other relevant] conduct” under the current guidelines. Finally, the court does not believe that Stewart’s reasoning should be extended to cover this case because of the factual differences in the two cases. The supposed victims in Steivart were much more directly tied to some concrete loss than the elderly patients in this case. The Stewart defendant preyed on the susceptibility of elderly individuals to facilitate a fraud on funeral homes; Stewart was not a case where elderly patients were merely subjects of a referral scheme that provided them with appropriate and necessary care that might not otherwise have been provided. Rather than follow Stewart, the court now follows the majority rule that one must suffer actual or intended harm or loss to be considered a “victim.” The government has failed to show that the patients were harmed in any way. As the court noted in its July 21, 1999 Memorandum and Order (doc. 455), “there was no evidence at trial that the referred patients received substandard care .... There was also no evidence at trial that the referral relationship affected patient choice. To the contrary, where patients or their families expressed a hospital preference, BVMG worked to honor the request. There was, moreover, no evidence at trial that any patient received unnecessary services.” United States v. Anderson, 85 F.Supp.2d at- 1999 WL 588213, at *4 (D.Kan.1999). The government has indicated that it will not present additional evidence on this issue at the sentencing hearing. The lack of evidence proving that the patients were “victims” pursuant to U.S.S.G. § 3A1.1 cmt. 2 leads the court to overrule the government’s objection regarding the absence of a “vulnerable victim” enhancement in the PSIRs. III. Role in the Offense Enhancement Next, the government seeks a four-level enhancement for each defendant for his organizational or leadership role in the offense. Pursuant to U.S.S.G. § 3Bl.l(a), “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive” the court must increase by four levels. In the alternative, the government seeks a three-level enhancement for each defendant for his managerial or supervisory role in the offense. Pursuant to U.S.S.G. § 3Bl.l(b), “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive” the court must increase by three levels. In determining whether to apply a U.S.S.G. § 3B1.1 enhancement, the court should consider several factors, including: the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir.1999) (quoting U.S.S.G. § 3B1.1 cmt. 4). “The gravamen of the enhancement is either the exercise of control over other participants or the organization of others for the purpose of carrying out the crime.” United States v. Tagore, 158 F.3d 1124, 1131 (10th Cir.1998). “There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1 cmt. 4. The court begins its analysis by noting that five or more participants were undisputably involved in the criminal activity; at least Dan Anderson, Robert La-Hue, Ronald LaHue, Tom Eckard, and Ron Keel were criminally culpable in the proven scheme. See U.S.S.G. § 3B1.1 cmt. 1 (“A ‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted.”); see also United States v. Allemand, 34 F.3d 923, 931 (10th Cir. 1994). Next, the court finds that enhancement under a “leader,” “manager,” or “supervisor” theory requires some showing that the defendant had “control over others” in the criminal conspiracy. See United States v. Valdez-Arieta, 127 F.3d 1267, 1272 (10th Cir.1997). The government need not prove, however, that a defendant controlled five or more participants; proof of control over one other person is sufficient to apply the enhancement. See U.S.S.G. app. C, amend. 500 (“To qualify for an adjustment under [section 3B1.1,] the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.”); United States v. Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir.1998) (“The government does not have to prove that defendant controlled five or more participants. Instead, it must prove that five persons participated in the criminal venture, and that defendant exercised leadership control over at least one person.”). Finally, the court is cognizant of the divergent “organizer” standard — absolutely no finding of control is necessary to support an enhancement for acting as an “organizer.” Tagore, 158 F.3d at 1131 (quoting Valdez-Arieta, 127 F.3d at 1272). “A defendant may receive an enhancement as an organizer for ‘devising a criminal scheme, providing the wherewithal to accomplish the criminal objective, and coordinating and overseeing the implementation of the conspiracy.’ ” Tagore, 158 F.3d at 1131 (quoting Valdez-Arieta, 127 F.3d at 1272). For the reasons set forth below, the court concludes that Mr. Anderson and Robert La-Hue were leaders and organizers, mandating that each receive a four-level sentence enhancement. The court finds, however, that Ronald LaHue, was solely a participant in the criminal scheme; a “role in the offense” increase to his sentence is inappropriate. Thus, the court overrules the government’s objection as to Ronald La-Hue. A. Defendant Dan Anderson Mr. Anderson’s sentence requires a four level enhancement both because of his leadership role and his organizer role. Applying the Tagore standard, Mr. Anderson qualifies as an “organizer.” Tagore, 158 F.3d at 1131. First, Mr. Anderson was instrumental in devising the criminal scheme. “The evidence at trial was overwhelming that it was Mr. Anderson ... who offered and paid remuneration to the LaHues. Specifically, Mr. Anderson directed the $150,000 annual payments to the LaHues and Mr. Anderson assigned Mr. Eckard to assist BVMG.” United States v. Anderson, 85 F.Supp.2d at 1066 (D.Kan.1999) Second, Mr. Anderson provided the wherewithal to accomplish the criminal objective; he personally directed that $150,000 be payed annually to the LaHues. See id. at 1065. Finally, Mr. Anderson coordinated and oversaw the implementation of the conspiracy by directing others to carry out the scheme despite his knowledge that the conduct was illegal. For example, even when Baptist attorney Mark Thompson informed Mr. Anderson that the agreement with the LaHues did not conform to Medicare safe-harbor regulations, Mr. Anderson refused to bring the contracts into compliance and directed Mr. Eckard to continue his service for the LaHues. See id. Mr. Anderson also qualifies as a “leader” under the 10th Circuit’s enumerated factors for analyzing a defendant’s role in the offense. See United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir. 1999). First, Mr. Anderson exercised decision-making authority by resolving to make monthly payments to the LaHues and continuing to provide Mr. Eckard’s services to the LaHues free of charge. Undisputed evidence shows that Mr. Anderson was the individual with whom the LaHues negotiated the original agreement in 1984-85; over the years, Mr. Anderson signed all but one agreement between Baptist Hospital and the LaHues. Second, the nature of Mr. Anderson’s participation was that the scheme was, in one witness’ words, “Dan Anderson’s deal.” Mr. Anderson ordered the illegal remuneration and continuously took steps to insure that Baptist’s relationship with the La-Hues remained amicable. Third, although some evidence at trial suggested that Mr. Anderson left the details of the referral scheme to others, the government met its burden of proving that Mr. Anderson was intimately involved in planning the large picture of the referral scheme. Mr. Anderson directed and approved all of the benefits which Baptist conferred on the LaHues. Finally, Mr. Anderson had ultimate control over the jobs of Mr. Keel and Mr. Eckard; he used both men to carry out the criminal scheme. Although there is little evidence that Mr. Anderson was involved in recruiting accomplices, that factor is largely outweighed by the extensive role he otherwise played in the scheme. Further, because of the unique circumstances in this case, the court does not weigh the “claimed right to a larger share of the fruits of the crime” factor in its decision. Unlike a typical drug conspiracy, for example, the defendants here did not have a common pot of money from which they apportioned funds based on each defendant’s role in the scheme. Mr. Anderson attempts to downplay the evidence of his leadership and organizer roles by arguing that he was no more culpable than the LaHues. However, Mr. Anderson’s role in the offense must be analyzed in view of the entire criminal scheme, not by a comparison solely to the roles of the other convicted defendants. See United States v. Knox, 124 F.3d 1360, 1366 (10th Cir.1997) (holding that evidence that others were leading figures did not undermine the determination that defendant was a leader or organizer); U.S.S.G. § 3B1.1 cmt. 4. (“There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.”). As discussed above, Mr. Anderson was a leader and an organizer of the overall remuneration scheme between Baptist Hospital and the LaHues, thus mandating a four-level sentence enhancement. B. Defendant Robert LaHue Similarly, Robert LaHue’s sentence requires a four-level enhancement both because of his leadership role and his organizer role. Robert LaHue meets the standard for “organizer” as set forth above. See Tagore, 158 F.3d at 1131. First, Robert LaHue devised the criminal scheme of referring patients to hospitals in return for various forms of compensation. Second, Robert LaHue provided the wherewithal to accomplish the criminal objective, as he provided the hospitals with patients from the medical group that he owned and controlled. Finally, Robert LaHue coordinated and oversaw the implementation of the referral relationships. He was a key participant in the planning of the bribery scheme and directed Mr. Eckard to facilitate the patient referral process. The court has previously concluded that, in addition to continuously negotiating with Baptist, Robert LaHue “was clearly involved in the relationships with all the non-Baptist hospitals.” United States v. Anderson, 85 F.Supp.2d at 1062 (D.Kan. 1999). Under the enumerated factors for analyzing a defendant’s role in the offense, Robert LaHue should also be termed a “leader”. See United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir.1999). First, Robert LaHue had the ultimate decision making authority of where to send his patients and whether to solicit a particular hospital to participate in a kickback arrangement. Second, Robert LaHue was intimately involved in the offense by soliciting and receiving remuneration, by directing the actions of Mr. Eckard, and by directing BVMG physicians to refer patients to particular hospitals. Third, he attempted to recruit accomplices by authorizing Mr. Eckard to solicit other hospitals. Fourth, as previously discussed, Robert LaHue participated in planning the logistics of the scheme. Finally, Robert LaHue exercised control and authority over Mr. Eckard and BVMG physicians; he directed Mr. Eckard to solicit bribes from non-Baptist hospitals and directed BVMG physicians to refer their patients to particular hospitals. Robert LaHue makes an argument similar to Mr. Anderson’s that he is no more culpable in the offense than the other defendants. As the court has noted above, however, a defendant’s role in the offense must be analyzed in view of the entire criminal scheme. Robert LaHue clearly was a leader and organizer of the overall remuneration-for-patients scheme. C. Defendant Ronald LaHue Unlike his co-defendants, Ronald LaHue was not a leader, organizer, manager, or supervisor of the Medicare kickback scheme. Rather, he solely committed the crimes that he was convicted of, bribery and conspiracy, while doing little else. As the Tenth Circuit recently held in Anderson, committing the crime of conviction will not alone support a “role in the offense” enhancement. See United States v. Anderson, 189 F.3d 1201, 1211 (10th Cir.1999). First, Ronald LaHue cannot be defined as an “organizer” of this crime scheme. Although there is some evidence that Ronald LaHue helped his brother Robert LaHue devise the remuneration scheme, the government has not proven that the additional “organizer” requirements are present. See Tagore, 158 F.3d at 1131. In the first place, Ronald LaHue did not have the wherewithal to accomplish the criminal scheme. The evidence showed that Robert LaHue owned BVMG and developed BVMG policies. Robert LaHue, not Ronald LaHue, had the ability to direct the physicians at BVMG to send their patients to a particular hospital. Moreover, Ronald LaHue did not coordinate the conspiracy, Mr Anderson and Robert LaHue did. Ronald LaHue did little more than negotiate his own contract with Baptist and participate in discussions which would effect that contract. Other than overseeing his personal contract, Ronald LaHue worked primarily as a staff physician at BVMG under the direction of his brother. Although the government presented evidence showing that Ronald LaHue recommended that BVMG solicit Bethany Medical Center (Bethany), the solicitation only occurred after Robert La-Hue approved the idea. And although Ronald LaHue accompanied Robert La-Hue and Mr. Eckard to a meeting with Liberty, no evidence revealed Ronald La-Hue’s role in the meeting. The court has previously determined that the evidence is insufficient to prove that Ronald LaHue was involved with negotiations at any other hospitals. See United States v. Anderson, 85 F.Supp.2d at 1062 (D.Kan. 1999). Second, Ronald LaHue is not a “leader,” “manager,” or “supervisor” under the factors enumerated by the Tenth Circuit for analyzing a defendant’s role in the offense. See United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir.1999). First, as discussed above, Ronald LaHue had very little decision-making authority in the scheme. For example, no contracts were entered into with hospitals without the permission of Robert LaHue. Second, Ronald LaHue’s participation in the offense was similar to the defendant’s participation in Anderson — each played a definite role in the criminal scheme, but neither played a leadership role. In Anderson, the defendant was convicted of conspiracy to distribute and possession with intent to distribute cocaine, and money laundering. United States v. Anderson, 189 F.3d 1201, 1210 (10th Cir. 1999). The evidence at trial showed that the defendant, Sylvester Anderson, among other things, picked up a drug “courier” at the airport, paid cash for two kilograms of drugs every two weeks, gave drugs to a drug “courier” for transport, and purchased a bus ticket for a drug “courier” after giving her a ride to the bus station. See id. at 1205-06. The Tenth Circuit determined that these actions showed that Sylvester Anderson committed the convicted offenses, but did not support a U.S.S.G. § 3B1.1 enhancement. Similarly, as discussed above, Ronald LaHue committed acts that support his convictions, but not acts above-and-beyond the offenses of conviction. Third, just as Sylvester Anderson did not recruit accomplices by associating with drug “couriers,” see id. at 1211, Ronald LaHue did not recruit accomplices by associating with hospitals that had agreements with BVMG. Robert LaHue and Mr. Eckard did most of the soliciting of hospitals. Fourth, as previously discussed, Ronald LaHue did not take an organizer role in the scheme. Finally, the government has failed to prove that Ronald LaHue exercised control over others. Mr. Eckard admitted at trial that Robert LaHue, not Ronald LaHue, was the primary source of his instruction, Further, even when Ronald LaHue suggested that Mr. Eckard solicit Bethany, Mr. Eckard did not attempt to do so until Robert LaHue approved. No evidence was presented that Ronald LaHue had any control over BVMG physicians and staff, either. Because Ronald LaHue does not satisfy U.S.S.G. § 3B1.1, the court denies the government’s objection as to the lack of a “role in the offense” enhancement in his PSIR. IV. Abuse of a Position of Trust/Use of Special Skill Enhancement The next objections pertain to the PSIR recommendations that a two-level enhancement be added to each of the defendants’ sentences based on each defendants’ use of a special skill or abuse of a position of trust. All parties agree that special skill enhancements are inappropriate. However, the defendants also object to the imposition of abuse of trust enhancements. For the reasons below the court sustains the parties’ objections to special skill enhancements and further sustains the defendants’ objections to abuse of trust enhancements. Section 3B1.3 of the U.S.S.G. provides: “If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.” As the parties have noted, the defendants in this case clearly did not use special skills to facilitate the commission of their crimes. In United States v. Gandy, the Tenth Circuit held that “the mere fact that a defendant possesses a special skill is not enough to warrant his sentence being enhanced under Guideline 3B1.3.... Rather, the government must show and the court must find ... that the defendant used his special skill to facilitate the commission of the offense.” United States v. Gandy, 36 F.3d 912, 915 (10th Cir.1994). Accordingly, the Tenth Circuit reversed and remanded because the district court improperly enhanced for use of a special skill the sentence of a podiatrist who was convicted of submitting false claims to Medicare. The district court erred, held the Tenth Circuit, in that it failed to articulate “how Defendant used his podiatric skill to significantly facilitate the commission of the offense.” Id. at 916. Although the Tenth Circuit did not foreclose the possibility that the district court might be able to articulate a basis for the enhancement on remand, it strongly hinted that such a finding would be inappropriate: We note that the [district] court’s finding is problematic for another reason. The court’s statement that ‘[i]f [Defendant] hadn’t had [his skill] no fraud could have been committed by him,’ seems to suggest that because Defendant is a podiatrist, a fortiori he used his special skill in the commission of his offense. As we have already explained, however, it must be shown not only that he possessed a special skill, but also that he used that special skill to facilitate the commission of the offense. Id. at 916 n. 2. Like the situation in Gan-dy, it would be inappropriate to enhance in this case based merely on the LaHues’ special skill as doctors. There is absolutely no indication that they used their medical skills to facilitate or conceal the kickback scheme. As Mr. Eckard’s successful efforts to entice Non-Baptist hospitals to enter into agreements with the LaHues indicate, no special skill was needed to collect remuneration in return for patients. The court will not enhance for use of special skills. Likewise, the court does not find that any defendant abused a position of trust and will not enhance on that basis. For the abuse of trust adjustment to apply, “the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense.” U.S.S.G. § 3B1.3 cmt. 1. “The primary concern of § 3B1.3 is to penalize defendants who take advantage of a position that provides them freedom to commit or conceal a difficult-to-detect wrong.” United States v. Trammell, 133 F.3d 1343, 1355 (10th Cir.1998). Furthermore, the Tenth Circuit has made it clear that “[t]he question of whether an individual occupied a position of trust is evaluated from the victim’s perspective.” Id. Although there are no Tenth Circuit cases enhancing for abuse of trust in a bribery context, the Tenth Circuit has allowed abuse of trust enhancement in the fraud context in only “two categories of cases: (1) where employees abuse their position within their own organization to take advantage of the employer, and (2) where someone uses a ‘fiduciary or personal trust relationship’ to perpetrate the charged offense against the beneficiary of the trust.’ ” United States v. Pappert, 112 F.3d 1073, 1080 (10th Cir.1997). These standards will be applied to the defendants below. A. Defendant Dan Anderson The court rejects the PSIR finding and the government’s arguments that Mr. Anderson abused a position of trust. The government begins by asserting that Mr. Anderson abused a position of trust with Baptist Trustees, as a “fiduciary of the hospital’s resources,” by using Baptist resources to “violate the law, ie., to offer and pay illegal remunerations in return for the referral of Medicare patients.” Government’s Sent. Memo, at 54. The court finds, however, that because abuse of trust is measured from the victim’s perspective, see Trammell, 133 F.3d at 1355, and neither Baptist nor its trustees were harmed, that Mr. Anderson did not abuse his position of trust with Baptist. To the contrary, Baptist was financially benefit-ted by the LaHue patient referrals. Further, trial evidence showed that the Baptist Trustees were kept fully informed of negotiations and transactions which Baptist entered into with the LaHues. Next, the government argues that Mr. Anderson abused a position of trust with Baptist patients because he spent hospital money on the LeHue transactions, rather than on medical care. The court rejects this argument because Mr. Anderson clearly did not have an employer-employee relationship with the patients, and because the government has presented no evidence that Mr. Anderson owed the patients a fiduciary duty — in fact, he did not even interact with hospital patients. The government makes a final attempt to establish the violation of a trust relationship between Mr. Anderson and Medicare. The government claims that Medicare relies on hospital executives to deal with Medicare fairly. However, “a Medicare-funded care provider, as a matter of law, does not occupy a position of trust vis-a-vis Medicare.” United States v. Mills, 138 F.3d 928, 941 (11th Cir.1998). The government presents no specific evidence that Mr. Anderson was a fiduciary of Medicare. Rather, he and Medicare participated only in a series of arms-length transactions. Accordingly, the court sustains Mr. Anderson’s objection to the PSIR abuse of trust enhancement. B. The Defendants LaHue Neither of the two types of relationships recognized by the Tenth Circuit as allowing an abuse of trust enhancement was engaged in by the LaHues. See Pappert, 112 F.3d at 1080. First, BVMG, as the LaHue’s employer, was benefitted, not harmed, by the LaHue’s remuneration arrangements with hospitals. Thus, BVMG was not a “victim” from whose view point the court may assess the abuse of trust standard. See Trammell, 133 F.3d at 1355. Similarly, although the LaHues occupied a position of trust with their patients, the patients were not harmed and are therefore not “victims.” The second type of relationship is not present here, either, because the LaHues did not have a fiduciary relationship of trust with Medicare. In a case with facts similar to those in this action, the Tenth Circuit held that something more than submitting claims to the United States is necessary for a physician to be deemed to occupy a position of trust with the government. See United States v. Custodio, 39 F.3d 1121, 1125 (10th Cir.1994). In Custodio, the Tenth Circuit affirmed thé district court’s decision not to enhance for abuse of trust the sentence of a doctor who contracted to perform medical services on a military base pursuant to the Civilian Health and Medical Program for the Uniformed Services (CHAMPUS) but who submitted false CHAMPUS claims: We agree with the district court that something more than [the defendant’s] being a CHAMPUS partner is required for the Government to meet its burden. The court could correctly find the wrong was difficult to detect [not because of some special position of trust held by the defendant, but] as a result of the way the CHAMPUS system worked and that [the defendant’s] position did not allow him to make his wrongs more difficult to detect, although it did allow him to abuse the system. Id.; cf. United States v. Kensington Hosp., 760 F.Supp. 1120, 1129 (E.D.Pa. 1991) (A civil Medicare Anti-Kickback case in which the court stated, “I find nothing in the relationship between the doctors and the United States that creates a fiduciary duty on the part of the physicians toward the government”). The LaHues did not abuse a position of trust with Medicare that provided them freedom to commit or conceal a difficult-to-detect wrong. A Medicare kickback scheme is inherently a difficult-to-detect wrong, and nothing about the LaHues’ positions made the scheme more difficult to commit or detect in this case than it would have been in any other case. See Custodio, 39 F.3d at 1125; cf. United States v. Koehn, 74 F.3d 199, 201 (10th Cir.1996) (“In every successful fraud the defendant will have created confidence and trust in the victim, but the [abuse of trust] sentencing enhancement is not intended to apply in every case of fraud.”). V. Restitution The government’s final objection is to the failure of the PSIRs to recommend restitution for any defendant. The government asks the court for an order of restitution in one of four possible amounts: 1) the amount of the bribes, see United States v. Vaghela, 169 F.3d 729, 736 (11th Cir.1999) (in Medicare kickback scheme, “it is not unreasonable to assume that [Medicare] was overcharged in the amount of the kickbacks, and that the loss [Medicare] suffered was equivalent to that amount.”); 2) the amount Medicare paid the hospitals for inpatient services, under an unjust enrichment theory; 3) the amount' Medicare reimbursed the hospitals through Medicare Cost Reports; or 4) as to Mr. Anderson, a percentage of his salary from 1984 through January 1995, on the theory that some percentage of his salary was earned from using dishonest services. For the reasons set forth below, the court finds that no restitution should be made in connection with the schemes at Baptist or Bethany. Accordingly, the court overrules the government’s objection in regard to Mr. Anderson and in regard to the La-Hues to the extent of their dealings with Baptist and Bethany. The court will defer deciding until the sentencing hearing whether or not the LaHues will pay restitution in connection with hospitals other than Baptist and Bethany. U.S.S.G. § 5E1.1, along with applicable statutory provisions, governs sentences of restitution. The 1998 version of section 5E1.1 does not apply in this case because the offenses on which the defendants were convicted occurred prior to November 1, 1997; the court must apply the former version of section 5E1.1. See U.S.S.G. § 5E1.1(g)(1) (1998 version) (“This guideline applies only to a defendant convicted of an offense committed on or after November 1, 1997. Notwithstanding the provisions of [the guidelines detailing the ‘one book’ rule], use the former § 5E1.1 (‘set forth in Appendix C, amendment 571 in lieu of this guideline in any other case.’ ”)). Former section 5E1.1 provides: (a) The court shall— (1) enter a restitution order if such order is authorized under 18 U.S.C. §§ 3663-8664; or (2) if a restitution order would be authorized under 18 U.S.C. §§ 3663-3664, except for the fact that the offense of conviction is not an offense set forth in Title 18, United States Code, ... impose a term of probation or supervised release with a condition requiring restitution. (b) Provided, that the provisions of subsection (a) do not apply when full restitution has been made, or to the extent the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of a restitution requirement outweighs the need to provide restitution to any victims through the criminal process. 18 U.S.C. § 3663(a)(1)(A) allows a sentence of restitution upon “a defendant convicted of an offense under this title.” Where the offense of conviction includes a charge of aiding and abetting, 18 U.S.C. § 2, or where the defendant is convicted of conspiracy, 18 U.S.C. § 371, the defendant is subject to a sentence of restitution under section 3663(a)(1)(A), notwithstanding the predicate offense’s failure to appear in Title 18. See United States v. West Indies Transp. Inc., 127 F.3d 299 (3d Cir.1997); United States v. Minneman, 143 F.3d 274 (7th Cir.1998). Unlike other guideline applications, a restitution order cannot be based on the actual or intended gain to the defendant; it must be “based on the amount of loss actually caused by the defendant’s offense.” United States v. Messner, 107 F.3d 1448, 1455 (10th Cir.1997) (emphasis added); United States v. Guthrie, 64 F.3d 1510, 1516 (10th Cir.1995). The government has the burden to prove the amount of loss. Messner, 107 F.3d at 1455 (citing 18 U.S.C. § 3664(d) (1985) [now § 3664(e) (1999)]); Guthrie, 64 F.3d at 1516. Where more than one defendant has contributed to the loss of a victim, the court has the option of making each defendant liable for payment of the full amount of restitution or it may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and the economic circumstances of each defendant. See 18 U.S.C. § 3664(i). Moreover, the amount of loss must be offset by any benefit received by the victim. Guthrie, 64 F.3d at 1516. The parties dispute whether the government or the defendants bear the burden of proving the amount of offset. The Tenth Circuit has not spoken on this burden of proof, but it has indicated that it is reversible error not to offset when the defendant raises the issue at sentencing. See Guthrie, 64 F.3d at 1516. 18 U.S.C. § 3664(e) states that “the burden of demonstrating amount of loss” is on the government, but the burden of demonstrating “other matters” is on “the party designated by the court as justice requires.” Relying on this language, the Ninth Circuit has held that the act “allows the district court to determine who has the burden of establishing the offset.” See United States v. Crawford, 169 F.3d 590, 593 n. 2 (9th Cir.1999). Exercising its discretion, the court places the burden of coming forward with the amount of offset on the defendants because they are in the best position to come forward with evidence of any alleged benefits derived by the United States from the remuneration arrangement. The ultimate burden of persuasion concerning the amount of loss remains on the government. Based on the above legal standards, the court finds that the only appropriate accounting for victim loss under the facts of this case is the amount of bribes or consulting fees for which the respective hospitals submitted Medicare Cost Reports and received reimbursement from Medicare. These amounts are the only amounts the government would not have had to pay but for the illegal remuneration schemes. The evidence at trial revealed that the only victim in this case, the federal government, suffered at most $65,716 in losses in connection with the scheme at Baptist, $147,092 in connection with the scheme at Bethany, $1,500 in connection with the scheme at St. Joseph’s Medical Center, $0 in connection with the scheme at Deaconess Hospital, $140,540 in connection -with the scheme at Alexian Brothers Hospital, and $0 in connection with the scheme at Liberty Hospital. These figures reflect the amount of “consulting fees” for which the respective hospitals sought and received Medicare reimbursement through Medicare Cost Reports. Contrary to the government’s assertions, it would be inappropriate to value the amount of loss on the amount of the consulting fees paid by the hospitals and received by the doctors because the government has failed to show any nexus between the amount of what it considers as the bribes and the amount of its loss. Rather, the evidence at trial indicated that the amount of the consulting fees had no relation to the amount of loss suffered by the government. The evidence was clear that the government did not pay for consulting fees that were not reflected on the cost reports; the hospitals paid these monies out of their own funds. There was, moreover, no evidence that any unnecessary treatments were performed at any hospital. At Baptist, there was even affirmative evidence that the parties had created specific checks against overutilization. Further, the system Medicare had in place paid fixed amounts for patient services. Thus, the consulting fees being considered in their entirety as kickbacks or bribes in this case do not reflect loss to Medicare because, as the evidence clearly showed, Medicare would have paid the same fixed amount of reimbursement regardless of the kickbacks or bribes. The kickbacks or bribes affected only the location (i.e. the hospital) at which a patient was treated, not the amount that Medicare paid to reimburse for the treatment. Accordingly, the amount of the consulting fees does not reflect the amount of the government’s loss and the court will not use it as a yardstick for restitution. Similarly, the government’s claims that the amount of restitution should be based on the total amount Medicare paid the hospital for inpatient services or on a percentage of Mr. Anderson’s salary have no merit. The Tenth Circuit has made it clear that restitution sentences must be based not on the amount of a defendant’s unjust enrichment, but on the -victim’s actual loss. See Guthrie, 64 F.3d at 1516. Moreover, the Eleventh Circuit has expressly rejected the government’s “total amount paid” theory in a similar Medicare kickback case. See United States v. Vaghela, 169 F.3d 729, 736 (11th Cir.1999) (reversing restitution sentence of total amount paid by Medicare because “[speculation that Medicare ends up paying for some medically unnecessary treatments and tests when kickbacks are provided in exchange for the referral of Medicare patients and services is insufficient to support the government’s burden to prove actual losses in each particular case.”). Determining the amount of loss, i.e., the amount of consulting fees submitted by the hospitals on Medicare Cost Reports, does not end the court’s restitution analysis. The court also must offset the loss amount by any benefit shown by the defendants to have been received by the victim, the United States. See Guthrie, 64 F.3d at 1516. Victims are not to be paid twice. See United States v. Savoie, 985 F.2d 612, 619 n. 9 (1st Cir.1993). Thus, in connection with Baptist and Bethany, the court will offset the amount of the government’s loss by the amount that the government received in civil settlements from these two hospitals. The government has received a settlement payment from Baptist in the amount of $17.5 million and from Bethany in the amount of $1.2 million. The government’s losses related to these two hospitals were $65,716 and $147,092 respectively. The government has not offered any evidence to rebut the proposition that those very losses were taken into consideration in arriving at the amounts to be paid by the hospitals. Accordingly, no restitution is appropriate because, after the offset, the government suffered no loss. Given the greater economic resources of Baptist and Bethany relative to the defendants, it is appropriate to apportion the entire amount of restitution on the hospitals. See 18 U.S.C. § 3664(h) (“If the court finds that more than one defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the ... economic circumstances of each defendant.”). Thus, the court orders no additional restitution to be paid based on any losses related to these two hospitals. The court will defer deciding until the sentencing hearing whether or not it will order restitution in connection with hospitals other than Baptist and Bethany. Although no payments have been received by the government from these hospitals, there may be other evidence of benefits received by the government that should be considered for offset. VI. Version of the Offense The defendants object generally to the version of the offense stated in the PSIR, asserting that it is taken nearly verbatim from the government’s proposed version of the offense submitted to the probation officer. The court agrees with the defendants that the PSIR version of the offense is not accurate. The court has set forth a more appropriate version of the offense, supported by the evidence introduced at trial, in its July 21, 1999 Memorandum and Order. Therefore, the court sustains the defendants’ objections and finds that the offense occurred as stated in pages *1-20 of its earlier order. See United States v. Anderson, 85 F.Supp.2d 1047 (D.Kan. 1999). VII. Amount of the Bribe Enhancement The PSIRs recommend a fourteen-level enhancement for each defendant based on a calculation of the amount of bribes between $5 million and $10 million. See U.S.S.G. § 2B4.1(b)(l) (referencing U.S.S.G. § 2F1.1). The defendants contest this enhancement by arguing that the PSIRs apply the wrong guideline for determining the base offense level, use the wrong method for calculating the value of the bribes, and wrongly include certain legitimate transactions as bribes. As discussed below, the court overrules the defendants’ objection to the guideline used in the PSIRs to set the base offense level. The court defers ruling on the defendants’ remaining objections until after it has had a chance to hear additional evidence and argument on the issues at the sentencing hearing. A. Appropriate Sentencing Guideline The PSIRs recommend that the court apply U.S.S.G. § 2B4.1 as the guideline appropriate for determining the base offense level. Section 2B4.1 applies in cases of “Commercial Bribery and Kickbacks.” It commands a base offense level of 8, see § 2B4.1(a), and commands a specific offense characteristics increase of “the corresponding number of levels from the table in § 2F1.1” if “the greater of the value of the bribe or the improper benefit to be conferred exceeded $2,000.” § 2B4.1(b)(l). The defendants argue that the unique circumstances of this case, particularly that the defendants developed a complex system of care with no ill intent, mandate that U.S.S.G. § 2F1.1, rather than U.S.S.G. § 2B4.1, be applied for determining the base offense level. Section 2F1.1 applies to offenses involving fraud and deceit. The base offense level is 6, see § 2Fl.l(a), and the specific offense characteristics increase is based on the amount of “loss” rather than the amount of the bribes. See § 2Fl.l(b)(l). The court accepts the PSIR’s use of section 2B4.1 as the guideline to determine the base offense level and overrules the defendants’ request to use section 2F1.1 as the guideline to determine base offense level. U.S.S.G. § 1B1.2 requires the court to “[d]etermine the offense guideline in Chapter Two (Offense Conduct) most applicable to the offense of conviction.” There is little doubt that section 2B4.1, and not section 2F1.1, meets this criterion. First, the Guidelines themselves require this conclusion. Section 2B4.1 applies by its title to “commercial bribery and kickbacks,” and the statutory provisions referenced in section 2B4.1 include 42 U.S.C. §§ 1395nn(b)(l) and (2), the former statutory home of the Anti-Kickback Act. Moreover, the background notes to section 2B4.1 indicate that “[t]his guideline ... applies to ... [violations of 42 U.S.C. §§ 1395nn(b)(l) and (b)(2), [which] involve the offer or acceptance of a payment to refer an individual for services or items paid for under the Medicare program.” Second, the court notes that the government has consistently prosecuted this case as a bribery case, not a fraud case. For example, the Superseding Indictment uses the terms “bribe,” “bribes,” or “bribery” thirty-four times, but only “fraud” or “defraud” twice. Although this case does involve some elements of fraud, it is predominantly a case of bribery and conspiracy to commit bribery. Thus, the court does not believe that the characterization of this case should now be changed from a bribery case to a fraud case. Finally, courts that have addressed the issue have used section 2B4.1, to sentence in bribery cases and section 2F1.1 to sentence in false claims convictions. The Eighth Circuit affirmed the use of section 2B4.1 in determining the base offense level in the sentence of a psychologist who received payment from a hospital in exchange for referring patients to that hospital. See United States v. Jain, 93 F.3d 436, 442-43 (8th Cir.1996), cert. denied., 520 U.S. 1273, 117 S.Ct. 2452, 138 L.Ed.2d 210 (1997). In the District of New Jersey a court recently applied section 2B4.1 in sentencing a defendant who pleaded guilty to bribing a podiatrist for Medicare referrals. See United States v. Leon, 2 F.Supp.2d 592, 593 & 596 (D.N.J.1998). In comparison, the Tenth Circuit and a court in the District of Massachusetts have used section 2F1.1 in determining the base offense level for false claims convictions, but not for bribery convictions. See United States v. Laughlin, 26 F.3d 1523, 1525 & 1530 (10th Cir.1994); United States v. Skodnek, 933 F.Supp. 1108, 1109 & 1111 (D.Mass.1996). Only the Fourth Circuit has impliedly upheld the use of section 2F1.1 in the sentencing of a bribery case. See United States v. Adam, 70 F.3d 776, 781 (4th Cir.1995). This case is not persuasive, however, because the Fourth Circuit only reviewed the district court’s calculation of "loss," not whether the district court applied the correct guideline. The court therefore finds that the PSIRs properly applied section 2B4.1 in setting the base offense level and now overrules the defendants’ objections on this issue. B. Calculation of the Value of the Bribe The defendants’ next argue that the value of the bribe should be a “net” value, calculated by decreasing the amount of the illegal remunerations by the value to the government of the legitimate services performed by those involved. Although the court agrees that the proportion of the remunerations given as part of legitimate business transactions, if any, should not be included when calculating the value of the bribe, the court reaches this conclusion by reasoning different from the defendants’. The court believes that two separate issues must be examined to determine the value of the bribe: 1) whether the value of the bribe should be a “net” calculation or a “gross” calculation; 2) what actually constitutes the “bribes.” Applying U.S.S.G. § 2B4.1(b)(1), the court is required to increase the base offense level by an amount corresponding to "the greater of the value of the bribe or the improper benefit to be conferred." All parties and the PSIRs agree that calculating the "improper benefit conferred" would be very difficult in this case, and that a calculation of the "value of the bribe" is more appropriate. Disagreement arises, however, over whether the calculation of the value of the bribe should be a net calculation or a gross calculation. The government and the PSIRs contend that the value of the bribe should be the gross amount of all bribes solicited, received, offered, or paid. The defendants contend that the value of the bribe should be the net value of the remunerations received after the amount of benefits to the government have been taken into account. The court is persuaded that the value of the bribe must be a gross amount. In the first place, U.S.S.G. commentary indicates that the value of the benefit is a net calculation, see U.S.S.G. § 2C1.1 cmt. 2, referenced in § 2B4.1 cmt. 2, but is silent on whether the value of the bribe is a net calculation. Moreover, all but one of the cases located by the court that discuss a "net calculation" under 2B4.1 do so in the context of calculating the value of the benefit received. See, e.g., United States v. Jain, 93 F.3d 436, 443 (8th Cir.1996); United States v. Kummer, 89 F.3d 1536, 1545 (11th Cir. 1996). The one case that uses a net amount in calculating the value of the bribe does so in reliance on a case that used a net amount to calculate the value of the benefit. See United States v. Wester, 90 F.3d 592, 598-99 (1st Cir.1996), citing U.S. v. Fitzhugh, 78 F.3d 1326, 1331 (8th Cir.1996) ("In Fitzhugh, the court was concerned with valuing the improper benefit conferred on the borrower by a loan obtained by bank bribery.") Wester mixes the "value of the bribe" standard and the "value of the benefit" standard without explanation, and the court is not persuaded to follow suit. Concluding that the value of the bribe must be a gross amount is only the first step in the court’s calculation of the value of the bribe. Next, the court must decide what portion of the remunerations solicited by the LaHues and/or given by the hospitals were in exchange for patient referrals and thus were “bribes” rather than legitimate business transactions. At trial, the jury was required to convict if the referral of patients was at least in part in exchange for the remunerations. See Jury Inst. 33. All that is certain under the jury’s conviction, then, is that the full amount of the remunerations cannot be attributed to legitimate business transactions and some part of the remunerations were in exchange for bribes. The defendants argue that many of the transactions included as “bribes” in the PSIRs were really legitimate transactions. Based on the evidence presented at trial, the court is prepared to rule on some of the defendants’ objections, but defers ruling on others until additional evidence and argument is presented at the sentencing hearing. First, the PSIRs recommend inclusion of the salary of the temporary employee hired by Baptist to complete laboratory billing. The court finds that the government has failed to prove that providing the services of the temporary employee was a bribe by Baptist to the La-Hues. Rather, as the court noted in its previous order, “the project resulted in a nice net income for the hospital.” Thus, the court sustains the defendants’ objection. Second, the PSIRs recommend inclusion of the lease that Baptist assumed for the LaHues. The court sustains the defendants’ objection to such inclusion because Baptist had legitimate business reasons for assuming the lease. Third, the PSIRs recommend inclusion of the value of .the use of cars and a phlebotomist provided to the LaHues by Baptist. The court finds that the government’s evidence at trial failed to show that the car and phle-botomist were not provided as part of an arms-length, legitimate agreement. The court sustains the defendants’ objection against inclusion. Fourth, the PSIRs recommend inclusion of lab debts owed by the LaHues and uncollected by Baptist. Evidence at trial indicated that Baptist intended to collect the debt but that the debt became uncollectible when BVMG went bankrupt. Thus, the court sustains the defendants’ objection and finds that the uncollected debt was not a bribe. Fifth, the PSIRs recommend inclusion of the $100,000 line of credit created by Baptist but not drawn upon by the LaHues, on the theory that the LaHues “solicited” it illegally or that the hospital “offered” it illegally. The court finds that the government failed to present evidence at trial that the line of credit had any value; there is no evidence that any of the parties did not intend the loan to be repaid as part of an arms-length transaction. Therefore, the court will not include the line of credit as a bribe. The defendants’ objection is sustained. Sixth, the PSIRs recommend inclusion of the proposed 1993 loan from Baptist to the LaHues. Baptist ultimately rejected the LaHue’s proposal. The court sustains the defendants’ objection for the reason given above — the government presented no evidence that the parties did not intend the loan to be repaid as part of an arms-length transaction. The PSIRs next recommend inclusion of the solicitation of Baptist by the LaHues for a $30,000 increase in consulting fees. This was a blatant attenipt by the LaHues to obtain illegal remuneration and the court overrules the LaHue’s objections. However, Mr. Anderson specifically refused the solicitation, thereby refusing to expand the scope of the conspiracy. Thus, the court sustains Mr. Anderson’s objection to the inclusion of this amount in determining his sentence. The PSIRs also recommend inclusion of the LaHues’ proposal to have Baptist purchase Johnson County Medical Laboratories, Inc. (JCML) for $3.2 million. Because Mr. Anderson outright refused the purchase, the court sustains his objection against inclusion of this amount as to him. However, the court will defer ruling on the LaHue’s objections until it hears eviden