United States v. Kenneth Barker

ORDER

The opinion filed April 17, 1991 and reported at 930 F.2d 1408 is amended by deleting at 1410, right column, first full paragraph the second sentence beginning “The jury reviewed Lionsgate’s accounting documents ...” and replacing it with the following:

The jury reviewed an accounting document prepared by Lionsgate’s accountant for an appearance before the government Contract Board of Appeals, and this document was capable of being construed to support the government’s double-billing contention.

*587 With this amendment the petition for rehearing is denied. Judge Noonan dissents; he would grant the petition for rehearing.

OPINION

Kenneth Barker was president and general manager of Lionsgate Corporation, a family construction business. The Army Corps of Engineers contracted with Lions-gate to construct a quarter mile concrete channel for flood control purposes. Lions-gate performed work beyond the scope of the contract because of changed site conditions, design errors, and changes in government plans. Barker submitted 74 claims to the government for claimed extra costs.

The government, in turn, charged Barker with sixty-four counts of presenting false, fictitious, or…

942 F.2d 585 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth BARKER, Defendant-Appellant. Nos. 89-10105, 89-10228. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1990. Decided April 17, 1991. As Amended on Denial of Rehearing Aug. 7, 1991. Opinion, 930 F.2d 1408 , superseded. Charles Morgan, San Francisco, Cal., for defendant-appellant. Daniel S. Linhardt, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before CANBY, NOONAN, and RYMER, Circuit Judges. ORDER 1 The opinion filed April 17, 1991 and reported at 930 F.2d 1408 is amended by deleting at 1410, right column, first full paragraph the second sentence beginning "The jury reviewed Lionsgate's accounting documents ..." and replacing it with the following: 2 The jury reviewed an accounting document prepared by Lionsgate's accountant for an appearance before the government Contract Board of Appeals, and this document was capable of being construed to support the government's double-billing contention. 3 With this amendment the petition for rehearing is denied. Judge Noonan dissents; he would grant…

dissenting:

It is a fundament of our law that no one should bear the onus of conviction of a crime unless the existence of every element of the crime has been established by proof beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 , 99 S.Ct. 2781, 2787 , 61 L.Ed.2d 660 (1979). The convictions in this case are unsupported by evidence necessary to prove beyond a reasonable doubt the existence of the elements of the crimes with which the defendant was charged. We have an obligation of the most serious kind to right the wrong done by a judicial system for which we bear at least partial responsibility.

Background. Kenneth Barker, the defendant, is a civil engineer with extensive experience in large construction projects. For many years he worked for Bechtel Corporation, most notably as construction manager for the northern half of the Alaska pipeline. He also had governmental experience as construction division manager of the Central Sanitary District of Contra Costa County. Ultimately he went into the construction business for himself as president of Lionsgate Company, a firm owned by himself, his wife and sons.

In 1985 Lionsgate bid on the construction of the San…