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United States v. Hardin

United States Court of Appeals, Tenth Circuit

October 25, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
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 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. 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 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 ...


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