United States v. Kenneth Barker

Kenneth Barker appeals his conviction under 18 U.S.C. § 287 of submitting false claims against the United States in a project that Barker undertook for the Army Corps of Engineers. We reverse.

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 Ramon Channel By-pass, a flood control project of the United States Army Corps of Engineers (the Corps). Lionsgate *1276 was not the low bidder — a fact of significance because it was later suggested that Lionsgate had bid unrealistically in order to get the contract and then cheated to recoup its losses. The low bidder was a subsidiary of a large corporation. As the project was set aside for small business, the low bidder was…

dissenting:

I dissent because all of the matters about which Judge Noonan writes so passionately were resolved by the jury, who acquitted Barker on most charges but convicted on these, and the district judge, who denied Barker’s motion for a new trial on these counts. The jury was entitled to disbelieve the Barkers, and I respectfully disagree that we should serve as the fourteenth, fifteenth and sixteenth jurors.

There was evidence on each of the counts of conviction on which the jury could find Barker guilty beyond a reasonable doubt. On Count 33(b), there were daily reports signed by Wayne Barker as well as quality control reports which showed that three supervisors worked Saturday and Monday, but only one worked on Sunday. Contrary to the spin Barker put on the records, there was evidence that asterisks were used to indicate that equipment was checked out but not in use, so that the jury could find that while three pickup trucks were on the site on Sunday, only one supervisor was present. Thus it could reasonably have concluded that Barker’s claim for payment for three supervisors for all three days was false.

On Counts 48(b) and 57(b) there was evidence that Barker charged…

967 F.2d 1275 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 Dec. 16, 1991. As Amended on Denial of Rehearing June 17, 1992. Charles O. Morgan, Jr., 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. NOONAN, Circuit Judge: 1 Kenneth Barker appeals his conviction under 18 U.S.C. § 287 of submitting false claims against the United States in a project that Barker undertook for the Army Corps of Engineers. We reverse. BACKGROUND 2 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…