Which party bears the burden of persuasion for an AKS safe harbor, once the defendant has produced sufficient evidence to put the defense in play

The Anti-Kickback Statute ("AKS"), 42 U.S.C. § 1320a-7b(b), generally bars "remuneration" to induce referrals for health care goods and services for which payment may be made under a federal health care program. But the statute provides "safe harbors" that remove from the definition of "remuneration" certain payments, including payments to bona fide employees. Courts agree that the AKS safe harbors are affirmative defenses. Thus, the government need not address them unless the defendant produces sufficient evidence to put one or more of them in play. The district court found that petitioner Richard Hall had met his burden of production for the bona fide employee safe harbor. That left the question presented here: which party, the government or Hall, had the burden of persuasion on the safe harbor? Over Hall's objection, the district court assigned him the burden of persuasion by a preponderance of the evidence. The jury convicted him on the AKS charges. The court of appeals affirmed in an opinion that cannot be reconciled with this Court's reasoning in Ruan v. United States, 597 U.S. 450 (2022), and other cases. The question presented is: Which party bears the burden of persuasion for an AKS safe harbor, once the defendant has produced sufficient evidence to put the defense in play.