Duz-Mor Diagnostic Laboratory, Inc. was convicted in a nonjury trial of Medicare and Medi-Cal fraud in violation of 42 U.S.C. §§ 1395nn(b)(2)(A) and 1396h(b)(2)(A). On appeal Duz-Mor contends that its conviction must be reversed because the conviction was inconsistent with the trial court’s dismissal of the indictment of Irigene More-head, the corporate officer and only human agent representing the corporation in the challenged transaction. Duz-Mor also questions whether the government proved that an offer of an illegal kickback was made, and that the services which Duz-Mor sought to provide were in fact reimbursable from federal funds.
Duz-Mor is a clinical laboratory certified as a Medicare and Medi-Cal1 provider. Irigene Morehead, the individual defendant below, was the president and chief technologist of Duz-Mor. She and her husband were the sole shareholders of Duz-Mor.
Posing as the representative of a group of investors planning to purchase a number of nursing homes in the Southern California area, a Federal Bureau of Investigation agent tape-recorded a conversation between the agent and Morehead. They discussed an arrangement under which Duz-Mor would provide clinical laboratory services to the proposed nursing homes under an agreement which, the government asserted, was an illegal kickback agreement.
Duz-Mor and Morehead were indicted and charged with offering to pay a remuneration as an inducement for the referral of medical services that were reimbursable from Medicare and Medi-Cal funds, in violation of 42 U.S.C. §§ 1395nn(b)(2)(A) and 1396h(b)(2)(A).
After hearing the tapes, the trial judge granted a motion to dismiss the indictment of the individual defendant but denied a motion to dismiss the indictment of the corporate defendant. In due course, the court entered a judgment of conviction against the corporate defendant.
This appeal raises three principal questions, only one of which requires extended discussion: Under what circumstances may a trial court acquit one defendant and convict the other when the only evidence of culpability applies equally to both?
The Second Circuit recently held in effect that in a bench trial of multiple defendants facially inconsistent verdicts will constitute a prima facie denial of due process and require reversal unless the trial court explains the difference in treatment of the two defendants by appropriate findings which demonstrate that the challenged conviction rests upon a rational basis. Rivera v. Harris, 643 F.2d 86 (2nd Cir. 1981).
Because in this case the trial court did not “acquit” the individual defendant, there are not, strictly speaking, inconsistent verdicts on record. A verdict of guilty was returned by the judge against the corporation, and an order dismissing the indictment was entered in favor of the individual defendant. But assuming, for the purposes of this appeal, that the trial court’s disposition of the case produced the functional equivalent of facially inconsistent verdicts, the question presented does not appear to have been decided in this circuit.
The other circuits do not agree on the effect of inconsistent “verdicts” in bench trials. Compare, e. g., United States v. Maybury, 274 F.2d 899, 903 (2nd Cir. 1960) (reversing inconsistent verdicts on multiple counts of an indictment) with United States v. West, 549 F.2d 545, 553 (8th Cir.), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977) (sustaining in*226consistent verdicts on multiple counts of an indictment).2 Because it appears to be an open question in this circuit whether, and under what circumstances, an inconsistent bench trial verdict may be the basis for reversing a conviction, we are free to adopt the rule that commends itself to us as the most reasonable.3
The rationales for permitting inconsistent verdicts in jury cases apparently are (1) that a jury verdict represents a collective deliberative process in which individual jurors may disagree about details in assessing the evidence; and (2) that courts are hesitant to inquire into jurors’ individual decision-making. See Rivera v. Harris, 643 F.2d 86 (2nd Cir. 1981).
The reasons for deferring to human frailty in dealing with juries do not apply to bench trials. First, the nature of the judge’s decision involves no collective deliberation and therefore no element of compromise in assessment of the evidence. Second, there is no need to defer to the privacy of jury deliberations or to the possibility that an acquittal is merely an exercise of the jury’s power of deciding “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920) (Holmes, J.).
*227The court in Rivera enunciated a more fundamental concern — that a facially inconsistent verdict of guilty, based on the same evidence on which another is acquitted, may be a violation of due process because the decision does not rest on any rational basis. Rivera, supra. Rivera suggested that the situation might not render the conviction of the jointly-tried co-defendant unconstitutional. Nevertheless, the court went on to hold that a due process violation becomes a serious problem when a trial judge fails to explain facially inconsistent bench trial verdicts.
If we treat the dismissal of the Morehead indictment as an acquittal,4 Duz-Mor’s conviction needs explanation under the reasoning of Rivera.
We find that the dismissal was, for the purposes of this case, the same as an acquittal. Moreover, we adopt the Rivera approach. Accordingly, we remand the case to the trial court for an explanation whether the court intended to acquit More-head, and if so, for a statement of principled reasons for treating like defendants in an unlike fashion. The conviction should be set aside in the district court as a deprivation without due process of law of Duz-Mor’s fundamental interest in liberty, unless the district court can articulate a rational basis for convicting Duz-Mor while acquitting Morehead.
Duz-Mor also contends that, as a matter of law, the acts on which its conviction were based were mere preliminary negotiations, and not an “offer” of a bribe or kickback proscribed by 42 U.S.C. §§ 1395nn(b)(2)(A) and 1396h(b)(2XA). The underlying contention — that the contract law definition of offer should control — is not supported by persuasive authority. The proposition also flies in the face of Congressional intent. See, e. g., 3 U.S.Code Cong. and Adm.News 3039 (1977). Analogous federal bribery cases define an “offer” as a representation expressing an ability and desire to pay a remuneration coupled with the intent to induce a desired action, in this case the referral of Medi-Cal business. See: United States v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980); United States v. Jacobs, 431 F.2d 754, 759 (2nd Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971). Duz-Mor’s proposal, suggesting a 15 per cent rebate in exchange for the referral of Medicare and Medi-Cal business, clearly meets this standard.5
Duz-Mor’s conviction is vacated and the cause is remanded to the trial court for the entry of a statement of relevant reasons for treating the two defendants differently. If no reasons are recorded within 21 days, the court is instructed to dismiss the indictment against Duz-Mor.6
REMANDED.