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.
C. Murphy, Assistant United States Attorney (Robert C.
Troyer, Acting United States Attorney, with him on the
brief), Denver, Colorado, for Plaintiff-Appellee.
LUCERO, McKAY, and HARTZ, Circuit Judges.
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.)
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.)
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.
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
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:
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.)
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.)
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."
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