United States v. Hardin , 874 F.3d 672 ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 25, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1229
KENNETH HARDIN,
Defendant - Appellant.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:14-CR-00449-MSK-1)
_________________________________
Jeffrey S. Pagliuca of Haddon, Morgan and Foreman, P.C., Denver, Colorado, for
Defendant-Appellant.
James C. Murphy, Assistant United States Attorney (Robert C. Troyer, Acting United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
_________________________________
Before LUCERO, McKAY, and HARTZ, Circuit Judges.
_________________________________
McKAY, Circuit Judge.
_________________________________
Defendant Kenneth Hardin was the senior manager of the Civil Rights Division
for the Regional Transportation District in Colorado (RTD). The Civil Rights Division
includes a number of divisions, including the Small Business Office and the Equal
Opportunity Office. As senior manager, Defendant was responsible for “set[ting] goals
on projects for small business participation” and “ensur[ing] compliance of small
business participation on various projects.” (R. Vol. IV at 185–86.) The Division also
reviewed all contracts that exceeded $10,000 “to determine if there are small or
disadvantaged business opportunity goals applicable to that project.” (Id. at 226.)
Lucilious Ward was the owner–operator of a busing company that had been
certified as a Disadvantaged Business Enterprise and Small Business Enterprise. Mr.
Ward was also a manufacturing representative for Build Your Dream, a Chinese
manufacturer of automobiles and rechargeable batteries. As a manufacturing
representative, Mr. Ward “represented [Build Your Dream] in order to sell their
merchandise, electric cars, buses, batteries . . . in the Denver metropolitan area.” (Id.
at 90.)
In 2008, Mr. Ward’s busing company contracted with RTD as a service provider
for Access-a-Ride, a program that provides local bus transportation in Denver for people
with disabilities. From that point on, as Mr. Ward would later testify, he paid Defendant
monthly bribes in exchange for his help. When the Access-a-Ride contract expired in
2014 and Mr. Ward received his final check, Defendant called Mr. Ward to request an
additional, final payment of $1,100. His call went to voicemail.
Unbeknownst to Defendant, Mr. Ward had pled guilty to tax evasion. Hoping to
receive a reduced sentence in his tax case, Mr. Ward relayed Defendant’s request to the
Federal Bureau of Investigation, which began using him as a confidential informant to
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investigate Defendant for bribery. At the direction of the FBI, Mr. Ward met with
Defendant several times over a six-month period. Their conversations were recorded.
On April 30, 2014, Mr. Ward gave Defendant $1,100 for Defendant’s help with
the Access-a-Ride contract, and the two men began discussing new (illicit) opportunities.
As it turned out, RTD was preparing a request for proposal to solicit bids for the purchase
of shuttle buses. At trial, Mr. Ward testified: “When we first started discussing the
buses, RTD was talking about ten buses, purchasing of ten buses. And ten buses would
have been – at $15,000 a bus, would have been roughly around 3 or 400,000. That’s
what we were ta[l]king about at first. And [Defendant’s] take was going to be probably
about 40 to 80,000 out [of] that, depending on how many buses that RTD purchased from
me.” (Id. at 106.) At the meeting, Mr. Ward stressed that he “want[ed] to make sure the
BYD thing”—i.e., the contract to purchase shuttle busses from Build Your Dream—
“goes,” (Suppl. R. Exhibit 01 at 17) and said he would “meet” with Defendant “every
month [to] continue on with BYD,” (id.). Mr. Ward promised “a thousand a month until
it comes through,” plus “a large sum of money when we get it.” (Id. at 20.) Defendant
responded, “Well . . . I want you to get the deal.” (Id.) Later, Mr. Ward told Defendant
that he would “get almost eight-hundred thousand bucks off that deal. . .” (Id. at 22.)
After referencing past transactions, Mr. Ward stated that he “want[ed] it to continue” and
asked Defendant to “make sure it happens for me, man.” (Id. at 23.) Defendant
responded: “Yeah.” (Id.)
On May 12, Mr. Ward and Defendant spoke over the telephone. Mr. Ward called
Defendant to discuss RTD’s request for proposal for the purchase of shuttle buses. Mr.
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Ward requested that Defendant bring the technical specifications for the shuttle buses
RTD would be requesting. Defendant agreed, provided that Mr. Ward “will keep ‘em
undercover and swear you don’t know where you got ‘em.” (Suppl. R. Exhibit 02 at 6.)
On May 15, Mr. Ward met again with Defendant. Mr. Ward wanted reassurance
that Defendant was “on this thing with the RTD.” (Suppl. R. Exhibit 03 at 16.)
Defendant said, “BYD buses? Yeah.” (Id. at 17.) Defendant also gave Ward a twenty-
nine page document entitled “Mall Bus Technical Specification.” Mr. Ward then paid
Defendant a bribe of $1,000 cash, “so [Defendant] would continue with the BYD
contract.” (R. Vol. IV at 131.) To that end, Mr. Ward and Defendant agreed to meet
every month to go over the details of the contract to keep Mr. Ward “up to date on where
[they] were.” (Id. at 132.)
Mr. Ward and Defendant met again on June 26 and September 15. Mr. Ward paid
$1,000 and $2,000 in cash for continued work on the shuttle-bus contract. During the
September 15th meeting, the two men discussed which other companies were likely to
bid on the contract. Defendant promised to “get [Mr. Ward] some other information” on
potential competitors “in the next couple days.” (Suppl. R. Exhibit 06 at 9, 10.) As Mr.
Ward said to Defendant, this would allow Mr. Ward and Build Your Dream to “tailor”
their proposal. (Id. at 12.) Defendant replied: “That would be helpful - that would be
helpful.” (Id.)
In between the two meetings, Defendant and Mr. Ward also spoke by telephone.
Defendant promised to “make a few calls and see what’s up.” (Suppl.. R. Exhibit 05
at 4.) Mr. Ward told Defendant: “Make sure that BYD is still on the table. Make sure
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that BYD is going to get buses and we’re gonna be able to do what we talked about
man.” (Id. at 5.) Mr. Ward admonished: “[W]e can’t make any money . . . , unless[] we
sell buses.” (Id. at 6.) Mr. Ward also reminded Defendant, “none of this is gonna matter
unless[] they buy the buses – if they don’t buy buses then we ain’t gotta talk about all this
other stuff. And that’s what my deal is with you – is to make sure they freakin’ buy
buses.” (Id. at 2.)
Defendant and Mr. Ward had what was to be their final meeting on September 25.
Defendant provided a list of three likely competitors’ strengths and weaknesses, and
discussed those strengths and weaknesses at length with Mr. Ward. At one point, Mr.
Ward told Defendant: “I just wanna make sure that . . . that we can get a piece of this,
dude. This is too much money to let go.” (Suppl. R. Exhibit 07 at 17.) Defendant
responded: “Oh . . . this is a great opportunity. This is – this is great.” (Id.) Later,
Defendant promised to keep on RTD, saying he would “wait for the proposals to come in
and start talking to them as well.” (Id. at 20.) Mr. Ward responded, “we can both make
some really good money in this,” and promised, “[n]ext week, I’ll bring you that other
thousand.” (Id. at 23.)
Defendant was indicted on four counts of violating 18 U.S.C. § 666(a)(1)(B) by
committing bribery involving a program that receives federal funds. The four counts
correlated to the four meetings he had with Mr. Ward about RTD’s request for proposal
for the shuttle-bus contract. Count 1 charged Defendant with accepting a bribe of $1,100
on April 30, 2014. Although Defendant and Mr. Ward discussed the request for proposal
at this meeting, Mr. Ward testified that the bribe was payment for Defendant’s help with
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the earlier Access-a-Ride contract. The jury acquitted Defendant on this count.
However, the jury found Defendant guilty as to Counts 2–4, which were based on Mr.
Ward’s May 15, June 26, and September 15 bribes relating to the proposed shuttle-bus
contract.
After return of the guilty verdicts, Defendant moved for a judgment of acquittal,
arguing that, because of his acquittal on Count 1, the government had not shown that the
bribes he solicited met the $5,000 threshold set by statute. The government responded
that a rational trier of fact could have concluded, based upon all the evidence presented,
that the bribes Defendant solicited involved “any thing of value of $5,000 or more.”
18 U.S.C. § 666(a)(1)(B). The district court denied Defendant’s motion, holding that the
jury could reasonably have concluded that the bribes were intended to influence the
selection of bids for the shuttle-bus contract and that the value of this contract exceeded
$5,000. Defendant timely appealed.
“We review a sufficiency of the evidence challenge de novo, viewing the evidence
and the reasonable inferences to be drawn therefrom in the light most favorable to the
government.” United States v. Wells, 843 F.3d 1251, 1253 (10th Cir. 2016). “[O]ur
review of the evidence is highly deferential.” United States v. Pickel, 863 F.3d 1240,
1251 (10th Cir. 2017) (internal quotation marks omitted). “[W]e may neither weigh
conflicting evidence nor consider the credibility of witnesses. It is for the jury, as the fact
finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from
the facts presented.” Wells, 843 F.3d at 1253. In other words, “[t]he only question is
whether the government’s evidence, credited as true, suffices to establish the elements of
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the crime.” United States v. Johnson, 821 F.3d 1194, 1201 (10th Cir. 2016) (internal
quotation marks omitted). “We may reverse only if no rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United States v.
Ramos-Arenas, 596 F.3d 783, 786 (10th Cir. 2010).
Defendant was convicted under 18 U.S.C. § 666, the federal-program bribery
statute. A person is guilty under § 666 if he, being an agent of an organization,
government, or governmental agency that receives federal-program funds, “corruptly
solicits or demands for the benefit of any person, or accepts or agrees to accept, anything
of value from any person, intending to be influenced or rewarded in connection with any
business, transaction, or series of transactions of such organization, government, or
agency involving any thing of value of $5,000 or more.” § 666(a)(1)(B). Defendant’s
main argument on appeal is that there was insufficient evidence for the jury to find that
the bribes were made in connection with any RTD business that involved $5,000 or more.
“The $5,000 element of § 666 pertains to ‘the subject matter of the bribe,’ which
‘must be valued at $5,000 or more.’” United States v. Buenrostro, 781 F.3d 864, 868 (7th
Cir. 2015) (quoting United States v. Robinson, 663 F.3d 265, 271 (7th Cir.2011)). “In
other words, the ‘business’ or ‘transaction’ sought to be influenced must have a value of
$5,000 or more.” Id. (internal quotation marks omitted). “The easiest and most obvious
way [to determine the value of the subject matter of the bribe] is by looking at how much
someone in the market was willing to pay for the benefit and an official was willing to
take to provide the benefit—the value of the bribe.” United States v. Owens, 697 F.3d
657, 659 (7th Cir. 2012); see also United States v. Fernandez, 722 F.3d 1, 12 (1st Cir.
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2013) (“In determining how to calculate the $5,000 requirement, some courts have
suggested that a court should look to the value of the bribe actually offered or paid.”).
“This means that the bribe amount ‘may suffice as a proxy for value; at least it provides a
floor for the valuation question.’” Id. (quoting Robinson, 663 F.3d at 275). “Another
approach to valuing the subject matter of the bribe is by looking to the value of the
benefit the bribe-giver will receive if the bribe is successful,” id., or to the value of the
benefit to third parties “with an immediate interest in the transaction,” United States v.
Hines, 541 F.3d 833, 837 (8th Cir. 2008). Sometimes, it is said that these different ways
of appraising the value of the “transaction” or “business” reflect a circuit split. However,
our review of these authorities persuades us that they are not in conflict; rather, we
conclude that there are various valuation methods that may be applied and that, in
evaluating the sufficiency of the evidence to support the jury’s verdict, a court should
affirm if there is sufficient evidence to support the verdict under any of these methods.
Here, Defendant does not dispute that the shuttle-bus contract itself would be
valued at more than $5,000. Instead, Defendant argues that the “subject matter” of the
bribe was not the anticipated contract to purchase shuttle buses, but RTD’s request for
proposal to solicit bids that would eventually lead to such a contract. And he contends
that the government failed to introduce evidence that the request for proposal itself had
any value, or that any competitive-bidding advantage Mr. Ward received from the
information Defendant provided to him was valued at $5,000 or more.
We find this argument to be unavailing because there was sufficient evidence for
the jury to find that the “business” or “transaction” at issue was RTD’s intended purchase
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of shuttle buses, not just the request for proposal. For instance, in the first recorded
conversation, Mr. Ward told Defendant that he “need[ed] to get some contracts” and had
to “get this BYD thing done,” promised Defendant “a thousand a month until it comes
through,” plus “a large sum of money when we get it,” and asked Defendant to “make
sure it happens for [him].” (Suppl. R. Exhibit 01 at 18, 8, 20, 23.) Defendant responded
that he “want[ed]” Mr. Ward to “get the deal.” (Id. at 20.) In another conversation, Mr.
Ward told Defendant that his “deal” with Defendant was “to make sure [RTD] freakin’
buy[s his] buses,” and Defendant did not disagree with this characterization of their
arrangement. (Suppl. R. Exhibit 05 at 2.) And in their last recorded conversation, Mr.
Ward told Defendant that they both had “a lot riding on this,” that this was “one of the
deals [they’d] been talking about for a long time and bringing . . . it home,” that they had
to “make sure [they could] get to the right people and do what [they] need[ed] to do” to
get the deal, that this was “too much money to let go,” and that, if they could “get this
deal,” they could “split a lot of money . . . hundreds of thousands of dollars.” (Suppl. R.
Exhibit 07 at 10, 17, 23.) Taking all of the evidence in the light most favorable to the
government, a rational trier of fact could reasonably find that Mr. Ward paid for
Defendant’s help with respect to the lucrative shuttle-bus-purchase contract, and not just
with respect to the request for proposal that was a preliminary step in RTD’s intended
transaction.
We are also unpersuaded by Defendant’s related argument that § 666, as applied to
him in this case, is impermissibly vague. This argument is premised on Defendant’s
underlying contention that the subject matter of the bribe was the request for proposal,
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not the contract, and, as discussed above, we conclude that the jury could reasonably find
the subject matter of the bribe to be the shuttle-bus contract itself. And we are persuaded
that the statute was sufficiently definite to give Defendant fair notice of the criminality of
his conduct. Cf. United States v. Graham, 305 F.3d 1094, 1105 (10th Cir. 2002)
(rejecting a void-for-vagueness challenge to a conviction for “engag[ing] in the business
of . . . dealing in explosive materials” because, “[c]ontrary to [the defendant’s]
suggestions on appeal, the fact that there may be variations in the ordinary meaning to the
term ‘business’ does not render the term vague for constitutional purposes”).
We accordingly AFFIRM Defendant’s conviction and sentence.
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