United States v. Kenneth Barker

585 defendant, questions by judge.” In of that vant trial our because against case, questioning the IRS. experience with the court’s was even more extensive than Masat. I find no way that Now, feel that you distinguishing rejecting or your fam- basis you either or members have problem, people analysis. call Fifth ily had a Circuit’s See also United have them, the IRS that experience Lussier, 25, (1st or with v. 30 Cir. you unsatisfactory, that unpleasant, 1991) (district encouraged courts are have, experience, formed of that because steps take to en- reasonable feasible prejudices or conclusions or some biases 6103(h)(5) able defendants to obtain infor- of that preconceived ideas because or mation, lay but “we do not down a hard might your fair- experience that affect rule”). and fast case, in this either impartiality ness and respectfully I II. dissent as to government, or for or for or defendant, of that against the because

experience? although majority states that these information, additional

questions “did elicit negate significant risk

[they] did not in-

prejudice caused questions If

complete disclosure.” veniremen were Sinigaglio asked America, UNITED STATES of however, insufficient, will be district courts Plaintiff-Appellee, develop questions that will pressed hard court’s satisfaction. meet with this BARKER, Though majority states that it does Kenneth Defendants reversal, practical apply per se rule of its Appellant. un- just that. District courts will

effect 89-10105, Nos. 89-10228. compelled dismiss doubtedly feel costly, Appeals, charges require unnecessary and United States Court impossible, discovery if not rather than at- Ninth Circuit. tempt possible questions to discern what 7, Argued and Submitted June 1990. I acceptable. find do not

this court would April Decided 1991. Congress passing this statute believe effectively eliminate the court’s intended Rehearing Denial As Amended on power during discover voir dire bias Aug. applies. Patton v. when this statute See Yount, (1984) (voir dire has 81 L.Ed.2d identifying bias

long upon been relied veniremen),

among United States John-

son, (C.D.Cal.1991) F.Supp. (proper negate any potential risk of dire can

voir

prejudice Congress intended section

6103(h)(5)). opinion also conflicts with the Fifth v. Ma decision United States

Circuit’s Cir.1990). Masat,

sat, In F.2d 88 jurors they or not were asked “whether subject of an audit or contro

versy Id. at 95. The court IRS.” government’s failure to

found that harmless error

comply with the statute was jurors asked the rele-

because “the Francisco, Cal., Morgan,

Charles San defendant-appellant. Linhardt, Atty.,

Daniel S. Asst. U.S. Sac- ramento, Cal., plaintiff-appellee. CANBY, NOONAN, Before RYMER, Judges. Circuit ORDER opinion April filed 1991 and re- ported at 930 F.2d 1408 is amended column, deleting right first full paragraph beginning the second sentence Lionsgate’s accounting “The reviewed replacing documents ...” and it with the following: accounting doc- reviewed prepared by Lionsgate’s ument accountant appearance for an before the Appeals, Contract Board of doc- this capable being ument was construed to government’s double-billing contention. right petition Amendment petition for re- this amendment

With dissents; grievances. ment for redress of Judge hearing is denied. Noonan rehearing. grant petition he would judgment We affirm the of the district

court. OPINION ANALYSIS CANBY, Judge: Circuit Sufficiency 1. the Evidence president gen- and Kenneth Barker was that in Barker contends there was Lionsgate Corporation, a manager eral support sufficient evidence to a conviction Army family construction business. 33(b), 48(b), 57(b). and In ad on counts Engineers contracted with Lions- Corps of contention, dressing this we must deter mile gate quarter construct a concrete to evidence, mine whether the viewed in the purposes. Lions- channel for flood control Government, light the most favorable to beyond scope the gate performed work permit any would rational trier of fact to changed site condi- the contract because guilty conclude that the defendant was be tions, errors, govern- in design changes and yond a reasonable doubt. Jackson v. Vir 74 claims plans. Barker submitted 318-19, ginia, claimed extra costs. the 2788-89, (1979); 61 L.Ed.2d 560 turn, charged Nelson, Barker government, 419 F.2d false, presenting Cir.1969). sixty-four counts of fictitious, to the Unit- or fraudulent claims 33(b) by a claim made Count involves States, 287.1 in violation of 18 U.S.C. ed § sons, Wayne Barker that he and his and guilty on three jury A found Barker Paul, Sunday, May worked on counts2, a verdict on was unable to reach them The Barkers testified that all three of counts, him twenty-two acquitted and weekend, had all that the worked court remaining counts. The district documentary introduced evi- judgment acquittal on two of granted a contrary. responds Barker dence to the jury reached no the counts on which daily job report, which indicates that conviction, the three counts of verdict. On only person day, that one worked post-ver- the district court denied Barker’s pickup trucks at the site. also shows three judgment acquittal and dict motion for a showing argues entry Barker one motion for a new trial. his alternative must in error one work- worker because jury not use three trucks. The er could is in- Barker contends that the evidence entitled, however, conclude that if conviction, support the and sufficient entry error it was there improperly that the district court therefore regarding pickup trucks. Its conclu- judgment acquittal motion for denied his by quality supported as well sion was trial. Barker and his motion for new report indicating one su- control jury contends that the should have further pervisor days all three of the Me- worked that section 287 is not vio- been instructed Day weekend in issue. morial by charge a false is offset an lated when 48(b) 57(b) In undercharge required jury on the same claim. addi- Counts tion, argues the district court Barker to determine whether Barker was double allowing unqualified billing government by calculating his erred an witness finally, a direct cost and as expert. compensation as an And as both an First of overhead. The reviewed contends that section 287 violates his years, imprisoned provides: not more than five or or 1. 18 U.S.C. 287 both." presents any person makes or or “Whoever civil, military, officer in the or naval service 33(b) charged billing of time States, 2. Count labor any department agen- or the United or to 57(b) 48(b) actually thereof, any worked. Counts cy upon claim or the United thereof, States, billing salary any department agency di- or of Barker’s both or false, fictitious, knowing rectly such claim to be and in overhead. $10,000 fraudulent, shall be fined not more than Pimentel, prepared Lions- United States accounting document (9th Cir.1981). (In appearance applying abuse-of- before gate’s accountant for standard, Ap- Board of discretion a motion for new government Contract granted only exceptional circum- capable of trial is document was peals, and this weighs stances in which the evidence heavi- being construed verdict). ly against In addi- double-billing contention. ment’s tion, testimony by govern- heard Offsetting Undercharges II. Lionsgate’s account- ment’s witness regarding computation of overhead ant Barker also contends that the dis charges. wit- and direct denying proposed trict court erred Lionsgate’s accountant ness testified required jury instruction that to deter admitted that proceeding in an earlier had mine the claim contained under whether salary included overhead.3 charges offset overc that would that, Lionsgate’s testified when accountant harges.5 A to an defendant is entitled normally charged in person over- a who is concerning theory instruction cost, a direct being charged head is supported by case if it is law and has some project should percent of overhead for foundation in the evidence. United States decrease, yet exhibits here showed show a 1451, (9th Echeverry, v. 759 F.2d 1455 Cir. percentage in the no decrease overhead 1985). Here, we conclude that Barker’s directly billed. when Barker’s services were proposed supported by instruction is not law.6 presented Although the evidence interpreta provides punishment 287 for the open

trial to alternative Section tions, any person presents so unreliable as to cause who a claim to the it was not determining “knowing depart us to from the rule that United States such claim to be false, fictitious, credibility assessing or fraudulent.” Barker of witnesses language requirement conflicting is a matter for the draws from this a evidence claimed, jury. Taylor, v. 716 that the total amount after other See United States 701, (9th Cir.1983). adjustments, The evidence corrections and must itself be F.2d 711 fraudulently disagree. was sufficient the verdicts overstated. We Likewise, against weight requirement 287 contains no Barker. Section evidence, intent, though overwhelming, purpose, not or effect of the false justifies deny the district court’s decision to claim must be to cause the a purpose trial.4 loss.7 of 18 287 Barker’s motion for new See U.S.C. “[T]he § then, false, court erred in admit- in that event the claim can not be 3. Barker contends that the ting the evidence of this witness because it was fictitious or fraudulent.” and it was vital to the Govern- corroborated regarding 6. Our cases have not been consistent jury Because the could have based ment’s case. proper reviewing standard for a district presented, we its verdict on the other evidence proposed jury court’s denial of instruction on need not address the issue of whether the ad- theory the defendant’s of the case. See United mission be corroborated. See Smith v. must Sotelo-Murillo, 176, States v. 887 F.2d 179-80 194, 198, U.S., 147, 155, 99 75 (9th Cir.1989). regard With to the determina- L.Ed. 192 proposed sup- tion whether the instruction is law, ported by appears review de novo to be point opined 4. Because the trial at one appropriate more than review for abuse of dis- probably that he would not have convicted fact, ques- cretion. See We id. need not decide that the trier of Barker if he had been here, however, tion for our conclusion would be contends that the verdict must have been the same under either standard. weight against great of the evidence. We distinct, disagree. positions quite The two are rough parallel may judge clearly, 7. A be drawn between sec- he could and the trial stated that prohibits say weight § tion 287 and 26 U.S.C. which that the verdict was evidence, wrong. submission of tax returns or statements known or that by the submitter to be fraudulent or false as to Proposed 5. Barker’s Instruction No. 16 stated: any material matter. Unlike some other sec- Code, determining you “In is whether claim false tions of the Internal Revenue section 7207 requirement should consider the entire claim. If there are of intent to evade tax- contains any undercharges any overcharges that offset es. "Conduct could violate 7207 therefore ...

589 prosecu qualified expert as an witness if criminal would be frustrated merely to those instanc under Federal Rule of Evidence 702.8 were limited tions solely expert testimony the defendant motivated es ‘where Whether admit or to to cheat the by an intent criminal trial is a decision left to the discre- ” v. gain unjust benefit.’ United States judge, tion the trial and we will not (9th Cir.1979) Milton, 602 F.2d 234 overturn that decision in the absence of an Maher, F.2d 582 (quoting discretion. abuse such See United Cir.1978), denied, 439 cert. Marabelles, States v. 59 L.Ed.2d (9th Cir.1984). (1979)). Here, engineer working Rowe was a civil given to the The instructions that were Corps Engineers as a claims not be jury made it clear that Barker could analyst. analyzed He had claims and re- he made the false or convicted unless had approxi- contractor’s documents for viewed knowledge fraudulent statements with mately years. testimony may seven His falsity fraudulency, and that of their well have assisted the in under- pur- willfully made them with a bad standing determining the evidence or a fact pose. When a claim is made to Binder, in issue. See United States ment, government must be to veri- able (9th Cir.1985). F.2d 602 not an was fy by scrutinizing the information the claim abuse of discretion for the trial to Willfully supplied. claimant has testimony. admit Rowe’s obviously frustrate that false statements impairment an intentional function. Such Right Petition IV. The to Redress for legitimate governmental function sat- of a Grievances any requirement of fraud section isfies Maher, 287. 582 F.2d at 848. Finally, Barker contends that plain purpose of section 287 is to government “The his First Amendment violated integrity of claims and vouchers right petition grievances. assure the for redress of government.” at 847- submitted to Id. argues Barker that the First Amendment purpose That not be served anyone 48. would right chilled because who will be knowingly permitting a claimant who had files a claim does willfully a false item in a submitted knowingly, subsequently so and if a trier of escape consequences if he is claim to false, fact determines the claim be unrelated, previous- to demonstrate an able person will have violated section 287. This unstated, possibly ly quite inadvertent improper is an construction of law. offsetting undercharge. con- See id. We For a claimant to be in violation of section therefore, clude, that the district court did 287, determine that the trier of fact must refusing give not err in Barker’s re- filing the claimant knew he was a false quested instruction. claim, merely knew he filed a not that simply claim. There is no constitutional Expert Competency III. anof right poses claim.9 to file a false This rule right further that a no conflict with the constitutional le contends witness, Rowe, gitimately petition Steven material, statement, skill, though edge, experience, training, false does or education where the attempt testify not constitute an to evade or defeat opinion. ...” to as to his requisite taxation because it does not have the reducing liability. effect of the stated tax This criminally constitutionality for- of statutes case, may example, taxpayer be the where a bidding upheld been false statements has gross receipts understates his by and he offsets this See, e.g., United States v. numerous occasions. understating expenses." also his deductible Jardins, (9th Cir.1985) Des 580 343, 352, States, Sansone v. United. 85 1001); (upholding United States v. 18 U.S.C. 1004, 1010, S.Ct. L.Ed.2d 13 882 How.) (1850) Staats, (8 12 L.Ed. 49 979 U.S. 289). permits (upholding 8. Federal Rules of Evidence 702 U.S.C. § wit- "qualified expert by ness who is as an knowl- Corporation, notably most as construction Barker’s grievances.10 the redress of knowledge they manager for the northern half of the Alas- claims, filed with false, governmental the First protected pipeline. ka He also had ex- are Restau perience manager Amendment. Bill Johnson’s as construction division See 731, 743, 103 NLRB, Sanitary rants of the Central District of Contra (baseless (1983) 2161, 2170, 76 L.Ed.2d Ultimately County. he went into the Costa by the First litigation is not immunized presi- business for himself as construction petition). right to Amendment Lionsgate Company, a firm owned dent of himself, his wife and sons. CONCLUSION the construction Lionsgate In 1985 bid on court’s denial of The district By-pass, Ramon a flood of the San Channel acquittal and motion for a new motion for project Army of the control proper; the evidence was suffi- trial was (the Lionsgate Corps Engineers Corps). jury’s verdict. cient signifi- fact of was not the low bidder—a interpreted sec- correctly instructions suggested later cance because was prohibit petitioner from know- tion 287 Lionsgate unrealistically order to bid in a claim ingly submitting any false item recoup get the contract and then cheated to monetary to the submitted subsidiary its losses. The low bidder was a Such a construction reimbursement. large corporation. project of a As of the First statute does not run afoul business, for small the low bidder set aside Finally, Amendment. Lionsgate, genuine disqualified, experience had sufficient and ex- witness business, job. got small court, the district in its discre- pertise for tion, expert. to allow him to as an site, inspecting the Barker discovered On changes had occurred be- that substantial

AFFIRMED. He immedi- tween his bid and the award. NOONAN, Judge, dissenting: Corps changes Circuit in ately notified the that the required changes in the contract. the site that no one It is a fundament of our law consequent dispute The led to Barker be- should bear the onus of conviction of a project in ginning work on the an atmo- every crime unless the existence of element sphere animosity. by proof of the crime has been established beyond a reasonable doubt. Jackson Corps improve. did Relations with the 307, 316, Virginia, happened is relevant here What 61 L.Ed.2d 660 The convic- why Corps eventually explanatory of unsupported by tions in this case are evi- a turned its differences with Barker into beyond necessary prove dence to a reason- investigation. criminal Barker made an of the elements of able doubt existence Corps the local officials: end-run around the crimes with which the defendant was requested made them mad. Barker obligation charged. We have an of the employee Corps that one be taken off the right wrong serious kind to done most unsafe; job practices his because system by judicial a for which we bear at by accusing Corps retaliated one of the partial responsibility. least boys The Bark- Barker of unsafe conduct. Barker, family scarcely speaking

Background. Kenneth the de- er was terms fendant, engineer Corps authority. another local In- is a civil with extensive with experience large projects. consolidating construction stead of his claims in connec- orders, years change many For he worked for Bechtel tion with Barker filed them Hylton, justice. holding 710 F.2d 1106 duties and of obstruction of In 10. United States Barker, Cir.1983), government’s retaliatory relied on is not to the that the action violated case, contrary. Hylton Hylton’s rights, In that had filed factual- First Amendment the court stat- against Hylton’s ly complaints accurate criminal federal ed that “were it demonstrated that government agents, by charg- complaints upon and the retaliated were frivolous and based con- ing corruptly allegations, totally with crimes of endeavor- a different her trived result ing impede agents might IRS in the exercise of their follow.” Id. at 1112. any false claims in fact there were an whether created resulting 76 claims singly: college failed to held Corps Stephen Rowe. Rowe was backlog enormous by law. specified Diego period engineering from San degree civil within process parties. between reg- boiled although Bad blood University, was not State trial, as himself, said as he saw Barker no He had engineer. a civil istered as the Federal against army “a one-man He had accounting. training formal employ- Corps He Government.” years in the Contract for seven worked “fabricated” making “phoney,” ees Corps as “a section Administration work. of his records false” “totally doc- job to review analyst”; his claims an intol- Barker Corps see came objection, Over the defendant’s uments. Barker’s repaid butt. pain in the erable chart on present permitted Rowe was of false allegations brought rhetoric and as to marked his conclusions which he States United against claims indicted. claim for which Barker each Sacramento. Attorney in was, usually, for his conclusions The basis court has assured States Lionsgate that documents of document or Corps’ stamp the not rubber it did his beginning At he had reviewed. look. independent took an complaints, but introduced testimony he was set of different doubt No [TR., summary witness” as “a prosecu- facts. reviewed officials The court noted that P. Nov. 15]. show, however, tor, as his case on admissible had to be based summary Corps employee essentially on a local relied attempt no There was documents. claims and analysis of expert. him as an qualify liability. criminal proof of his suggestion by the There was $769,078 Case. Bark- The Government’s information about he had ment that making on 64 counts indicted er was Barker. or intentions the motivations the United false claims piece of or that just looked at this Rowe Of the 18 U.S.C. violation of over- it to be an pronounced paper and Lionsgate, 47 were he had filed claims doublebilling. charge or alleged to have He was said to be false. Rowe with equipment; false- buttressed rates for falsely claimed vehicles; falsely Shy, chief of the Eugene of leased ly testimony inflated costs not equipment Section, which was used for claimed Construc- Administration Contract claimed; falsely of hours the number Branch, Operations Divi- Construction tion standby, when on equipment for claimed testi- Shy Corps in Sacramento. sion of the falsely time standby; not on was expected Barker told him fied that equipment; and vehicles for the same to be $5 the contract cost of the final false- employees; for costs falsely inflated written, for contract, as was The million. employees that paid to ly claimed overtime testified, had Barker, Shy million. $2.6 falsely claimed twice paid; was not infer- million. The of $2.4 claims submitted falsely per- for claimed employees; same filing Barker was possible that ence was falsely project; employed on the son not the intent change orders claims for employees standby time when for claimed million. goal of $5 his announced reaching doublebilling falsely standing by; were linking however, testimony was, There false claims alleged total of overhead. The or to specific claims intent this inferred $769,078. was govern- claims that million of the $1.6 by refined were further The 64 counts Shy’s false. charging to be ment was each parts, into being subdivided predic- and expectation testimony proved In specific crime. charging separate and specific Barker; show his it did not by tion commis- all, charged with the any claim. intent as the United felonies sion of 104 following documents 33a As to count July 1986 States, all committed between government. in evidence put August 1987. were and Quality Con- (1) Daily Construction Proved Its Case. How Government May Report for trol principal witness son, prepared by Traillee, Barker’s report according Lionsgate’s to Mr. ac- designated countant, general Wayne, manager always “assistant con- is quality control overhead. inspector.” tractor supervisor report showed that and 3 Earlier, Rowe had been asked pick-up had been at work on trucks this government if he knew what items made date, Sunday of the Memorial which was up the defendant’s overhead. He had an- Day An a 1 weekend. asterisk and after affirmatively, swered and he then entry pick-up for trucks indicated government, you asked “How do pick-up had not used. been know that?” His answer was: (2) Report Daily May Job for contractor, “The as the basis of his May May report 26. The showed $1,085 day overhead, present- extended Wayne “supervisor.” Barker as It also derogation ed a of the costs within his G Kenneth Barker and his showed two pool.” & A overhead sons, Paul, Wayne “employees” and What this answer meant was never ex- K.B., W.C.B., days. all three The initials plained. The strongly objected defendant ap- and P.B. and number 8x3 competency Rowe’s as to over- pear on the sheet. head. (3) Daily Report Tuesday, Job for Later, Rowe testified that he May changes 27. Under it had a note hearing Corps’ before the Board of Con- “K.B., W.C.B., reading: survey P.R.B. tract Appeals October 1987 and heard Sat.-Mon., W.C.B. recalculates elev. on Traillee, Lionsgate’s accountant, say that Sunday corps due directive from about wages Barker’s always included [illegible] following materials.” On the overhead. Rowe further testified that page Tuesday report under the 3-0, Traillee prepared Exhibit a doc- Comments, space for Additional it was ument submitted evidence surveying written “Extra Work ... over ment. unsigned This sheet of paper is P.R.B., W.C.B., weekend K.B.” Salaries, “Lionsgate entitled FY Wages 1986.” Under “Ken” On the basis of these documents it was year ending the fiscal November 1986 a testimony Stephen Rowe’s that the Tues- $125,000 shown, $12,500 total of of which day report said that all three Barkers “Direct,” $81,250 is attributed to to “Indi- Saturday worked Monday. To rect,” $31,250to “Home Sur- Office.” reach this conclusion apparently Rowe read prisingly, Rowe testified that this doc- what was either a ampersand dash or be- ument showed that Barker’s wages were “Sat.-Mon.” ampersand tween as an always in overhead. apparently disregarded Daily Job Re- On port May cross-examination Rowe recanted. 25 and the additional com- $12,500 He conceded that Tuesday report. on the He concluded wages by were shown this document to be that had been $800 for time on charged directly. He admitted he had no Sunday by that had not been worked Bark- way knowing whether the amount he er and his son Paul. said was doublebilled was not in fact a effect, Rowe, On cross-examination re- charge Barker, direct reflected the testimony canted. His was as follows: $12,500 “capital category direct” and not saying I am they not did not work on included in “overhead.” He further under- days. those I journals am—the daily do testimony mined direct by his acknowl- the requested not hours [TR. edging that there are two kinds of over- 29, p. 251], Nov. (General Administrative) head—G & A and 57B, to counts 48A As and Rowe testi- “job-site.” and He had no means of know- fied that each of charges these were ing spoken whether Traillee had A of G & under “labor” for the time general job site overhead when Rowe had over- manager that were “improperly” there. heard prosecution him. The made no at- duplicate charge.” Each was “a tempt Rowe clarify to what kind of overhead because, said, reached this conclusion he Traillee talking about. by the proportion out somewhat blown In addition Case. The Defendant’s filed, even that were of counts him to number leading and cross-examining Rowe result.” from the ultimate more sad the put on witness

recant, the defense sons, himself, his two the defendant stand judge stated that the trial As to count accountant, Traillee. and was, he stat- acquitted. He he have would by the find- ed, “surprised, even shocked that all of testified Barkers AH three declined to set aside ing.” he But days of the three all had worked them not “a miscar- he could find verdict because necessity had The Day weekend. Memorial [TR, Feb. P. riage justice.” 2834]. changed its Corps had because arisen great filter. A the use of sand about mind based on counts of conviction As to the redone, that so had to be many calculations overhead, judge trial doublebilling for Tuesday. on ahead project go could putdown engaged pun that was tedious, time-con- recalculations The were only witness on over- tomen needed three suming that stated, work “Rowe,” in over his he head. “was done at it had complete. Not all of The also [Id., P. trial head.” 2385]. records, prepared job compe- site. said, have had better “We should Barker, accurately Court,” and, showed that Wayne before tent witnesses were although all three had worked have had accountants again, three “We should Sunday. job site all not at the had better investi- We should have here. be- providing of evidence gation and better had that there Barker testified Kenneth regard to the overhead the court in fore doublebilling of his time. As no been salary as an of base the deduction appeal, in this the claims involved each overhead, applied et- always amendment there further testified that. cetera, didn’t have We etcetera. which, if into undercharges, taken account shortcutting, Mr. we had was What be, they meant should on the assumptions making some Rowe not overcharged being had far from of, believe, was Mr. I his name testimony charged enough. been Lionsgate.” Traillee, accountant public Traillee, certified independent judge de- Again, the trial [Id., p. 2836]. accountant, extra work that for testified justice.” miscarriage “a clined find be a change order there could of a a result “I still afterthought, he said: But as an dis job site overhead charge for on the confused I somewhat confess am testimony His from G & A overhead. tinct added, almost as a issue of overhead” report hearsay effectively contradicted thou- “I court: don’t have plea to this Rowe, all Kenneth ed reporter’s tran- court pages sands of overhead.” in “the wages Ninth Circuit of me that the script in front preferred Rowe’s government make they can certainly — which so that have will hearsay Traillee as witness — made Mr. in fact computations that intricate Rowe cross-ex attempt to rehabilitate [Id., p. Morgan made.” 2838]. has overhead. amining Traillee on 21 counts which As to the deliberat- Jury’s Verdict. the trial court agreement, reached had not charges felony days. Of the 104 over ed hope that expressed the vehement Barker, jury found him them, adding, retry would agree as to guilty was unable taxpayers’ a waste “I think it would be govern- guilty be, of 3. The him found retry and Barker would money.” To $760,000 over charged with punishment,” had him and unusual legally, “cruel persuaded They along had those something claims. in false “would be but percent than 1 total less jury [Id., p. as to a lines.” 2830]. said was false. government

what focus on on to then went The trial court Barker was mo where On and 64 Reaction. counts 63 The Trial Court’s totalling over claims acquittal or a false tions defendant these claims $317,000. described The court trial, “From observed: the court new “the pending” and largest claims “the because it it’s a sad case — sad outset really mitting here for.” The jury- claims we’re a claim. A claim means “a written agree by had been unable to on them. The demand or written assertion one of the contracting parties granted seeking as a matter of trial court now the motion for ac- right payment [Id., money in a certain quittal p. on them. 2841]. [TR, p. sum.” Nov. It is reason- 199]. standing felony The court left convic- able to conclude that what is a claim for overcharge Sunday tion for $800 purposes of the contract is a claim for Day of the Memorial weekend and the felo- purposes prosecution filing criminal ny doublebilling convictions for the of over- false claims under the contract. amounting head on two occasions to a total Under this definition it is the bottom line $5,550. counts, supporting explana- not the Appeal. appealed, The defendant making up tion. The entire document one challenging sufficiency of the evidence many pages claim runs for and has multi- competency testimony and the of Rowe’s ple appendices. falsity any To hold that contending jury as well that the particular of the document is criminal improperly they instructed because expand enormously would be to scope any overcharge by not told to offset of the statute. The crime is to assert undercharge on the claim. The defendant writing money a demand for more than the appeal, trial, also raised as he had at contractor is entitled to. contention that the First Amendment safe- By token, the same if the contractor asks guarded right to file claims without money to, for less than he is entitled he has prosecution. retaliation criminal not made a false claim. Hence the testimo- appeal was directed to the ny undercharging weighed as to had to be government counts of conviction. The before the could conclude that accepted the trial court’s advise not to re- false claim had been made. Denial of the try the counts where the requested point instruction on this fa- hung. tal error. The conclusion pur- that “the claim” for ANALYSIS poses of the criminal statute means the government 1. What is a claim? The provision bottom line is reinforced holding cites cases the contract that “if the claim” is for over prevail does not have to show loss to under $50,000, certify the contractor must “that point, the statute. On that there is no good the claim is made in faith that the disagreement. A claim is criminal if it supporting complete data are accurate and governmental obstructs a function al knowledge to the best of the contractor’s though it causes no loss. See United requested belief and the amount accu- White, 1472-73 rately adjustments reflects the contract (11th Cir.1985). ground It is common that which the contractor believes the what the prove had to was not [TR, ment is p. liable.” Nov. 200]. the intent to defraud the A clear distinction “sup- is made between claim, the intent knowing to make a false porting data” and “the claim”. The claim Milton, to be false. United States v. monetary. supporting data are the (9th Cir.1979); F.2d 231 United States v. justifying statements and schedules Maher, (4th Cir.1978), 582 F.2d 842 cert. Only $50,000 claim. when the claim is over denied, does the require the contrac- L.Ed.2d 73 tor’s certification supporting data. argument made Barker strange It would indeed if that what is jury should have considered the underchar- required civilly contractually only as ges depends on what constitutes “a claim” supporting large data for claims should be under 18 U.S.C. 287. The statute itself automatically subsumed under a criminal light. sheds no The contract between the applying statute to all claims. No reason Corps Lionsgate, however, details the expand exists to “claim” under the statute procedure for the contractor to use in sub- supporting to include the data.

595 1001; part of the False it once formed tion “the claim” between This distinction Act, 1015 Section 40 Stat. consistently Claims has been supporting materials “that is a false statement prohibits 1001 “a false construing is what in cases upheld influencing the ex- affecting or capable of civil or of criminal imposition for the claim” v. function.” government U.S. Cohn, ercise 270 v. States liability. In United Cir.1976). (9th 815, 820 Goldfine, 538 F.2d (1926) 251, 616 70 L.Ed. 339, 46 U.S. prove government must 1001 the Under violating § charged with the defendant but materiality the statement the Act because False Claims the criminal by a claimant. U.S. payment for demand made to to be statements false had caused 1469, (11th Cir. White, F.2d 1472-73 765 v. non- to obtain in order officials Customs 1985). prohibiting Construing 287 § from Customs. dutiable merchandise superflu renders 1001 statements § false to be indictment held the Supreme Court fundamental contrary to a result ous - a court, Jus- a unanimous Writing for bad. See, statutory e.g., construction. canon upon or ‘claim tice Sanford declared: “[A] 868, (9th Ecker, 845 F.2d 873 Nieto v. solely to relates the Government against’ Commissioner, 814 Cir.1988); v. Beisler claim approval or payment Cir.1987). (9th also 1307 See F.2d right is as- to which a property money or 273, 278 Johnson, F.Supp. Government, upon based against serted 287 and (D.Mo.1968) (distinguishing § claimant.” liability to the the Government’s Congress stating intended 1001 and § (emphasis 345-46, 252-53 Id. at offenses). distinct separate and treat upon the not focus case did This supplied). emphasized on the to a new trial us. issue before entitled precise alone; nonetheless, indicates but clearly instructions ground of flawed language, solely appeal the asser- aspects are further a “claim” consists there that government, right against considered. tion of a be right. precedes assertion in what For a Inaccuracy. 2. The Evidence of result must first be shown the same false it have reached to be We claim recovery of a reason- the facts. No issue was with where the be accord cases government could conclude trier of fact penalty by civil able Thus, proved it. claim here of a claims at issue assertion false three doubt. to recov- attempted beyond a reasonable government inaccurate be where document favorable Accepting for each false all inferences penalty er evidence looking at all the application government attached to proof of could one cannot find funds, jury, held that the we before doubt. paper, but a reasonable recover, inaccuracy beyond each false not for money.” claim for separate “for each false Sunday on the work done As to F.2d Woodbury, 359 States v. United side put one holiday, we Day Memorial J.). Similarly, Cir.1966)(Duniway, (9th solely at look testimony and Barkers’ recovery of sought where the produc produced. what filed, we false invoice penalty for each report, contemporaneous one ed only for penalty have held that it could supervi only 1 showed 25,1986, which May filed, each of the not for false voucher each report Sunday. The on sor had worked United false invoices. attached self-contradictory because itself Wholesalers, National used pickups two showed J.). Cir.1956) (Chambers, for one man. impossibility day- an oth further under concept report of a claim was contradicted Finally, this govern the ex- documents the converges contemporaneous claim statute er false Re Daily Job crimi- itself introduced - the statute which separate of a istence 25, 26, all of May “false, fraudulent ports fictitious or nalizes worked Barkers three made to the showed all representations” which statements document, that of one Sunday. There States, It would 18 U.S.C. that could containing a mark May statute strange if the false claim very amper- a dash or either read as have been statutory prohibition of sec- duplicated the ampersand, sand. If it was an con- Rowe did not Lionsgate know what billed jury judge tradicted the rest of the document which overhead. The could known, not have can stated that nor we. A man all three Barkers had worked can- rationally be convicted claiming days. on all three No other evidence was wages for he already paid which was Rowe, when government’s only offered. wit- say no one can whether or not he had been ness, explicitly conceded that he had no already paid. way knowing whether the Barkers worked or not. duty say was not the trial court’s miscarriage whether there “a jus- jury, judge, appeal and we on are (a tice” metaphorical rhetorical term whose exactly the same situation as Rowe. We may exaggerate force what must be found do not and cannot know whether the Bark- verdict). in order to set aside the Sunday, May ers worked on 1986. A duty court’s was to determine whether the self-contradictory report, contradicted on evidence was “sufficient to sustain a con- point by all contempo- the vital the other viction.” Federal Rules of Criminal Proce- rary reports, proves nothing. There is not sufficient, dure 29. If it was not the court merely a reasonable doubt as to Barker’s had no choice but to annul the verdict. A guilt; uncertainty there is total as to what “mere modicum” making of evidence truth, in fact is the and that conclusion is existence of each element of the crime evidence, government’s reached from the probable more than not was not kind of drawing might inferences be drawn evidence that could sustain a conviction. government’s in the favor. Virginia, Jackson v. jury gave itself contradictory re- S.Ct. at 2789. Where the evidence did not sponses to presented the count that this guilt beyond establish a reasonable doubt jury issue. The agree was unable to on the acquittal. defendant was entitled to Id. count 33a which Barker with over- The Evidence Intent. The evidence of charging three-quarter pick- for two ton is, possible, intent if even less than the ups, Sunday, May each used 8 hours on inaccuracy. false, evidence of To be jury 1986. The convicted Barker of count claim must not inaccurate be but con- billing men, 33b instead of on the sciously judge charged jury, so. As the date. same How did one man 2 pick-up use specific Barker must have had the intent to day? trucks all To have been doubt on file a claim he knew to be false. The pick-ups, had to be in the dark implies verdict found he had as to the men. such intent. But there is zero evidence to The same conclusion must be reached as jury’s findings. doublebilling to the of overhead. The one nothing Rowe knew of Barker’s intent. document on which Rowe relied shows the Shy get believed wanted to million $5 allocation of salary of Barker’s out of the contract - no evidence at all of charges direct distinct from the indirect an intent falsifying a few thousand dol charges constituting overhead. The doc- Apart lars worth of Shy, claims. from ument hearsay report undermines the a scintilla of evidence on intent was of wages all of Barker’s were in overhead. fered. putting Even aside Trainee’s actual testi- government may have assumed that mony distinguishing A job G & and site prove pattern it could unjustified such a overhead, the document itself entirely charges that falsify might an intent to ambiguous. It does not show what Rowe inferred from their number. See United show, thought once it did any wages Wholesalers, States v. National claimed Barker must have been double- at 950. Whatever the hope billed always paid because he through regard, in this when it prove failed to over overhead. of its dollar claims and 99% when the trial expert Rowe had no basis as an for ana- judgment ordered a acquittal lyzing spoke overhead. Rowe gobbledy- for,” counts “that we are really here gook when he did about overhead. inference was warranted as to the intent any could do the or what alleged inaccuracies. the three governing criminal counsel a defense appointed that the $760,000 claims of over On hours he carelessly the misstated case who an addi- on over false and said theory, government’s theOn had worked. did million tional $1.6 to a verdict prosecuted successfully have appears to challenge, Barker not even a de- support for here, statement the concrete Without entirely honest. been factually accu- not money that is mand for find fact could trier of reasonable proof Intent consciously false. is be rate must he had claims $6,000worth on some And in asking of the claim. by the proved falsifying. an intention reading “claim” expansive the the be it must to believe hard It is inaccuracy supporting if a contractor theory that government’s criminal. data is claim, and for data supporting submits to address no need is There accurate, then is not data supporting plain It is Amendment. to the First appeal very criminally false - that is claim This sad stand. cannot conviction that his inaccuracy establishes existence brought to an end. be case must to falsi intent knowledge and therefore dear to point made a has, perhaps, Corps government’s this is If the claim. fy Hall. fight City bureaucracy: don’t You law. theory, it not impose a federal courts is not regula dealing here We are being per- on Barker penalty criminal liability imposes absolute tory statute Corps. along go with the did who son dealing with areWe of intent. regardless ordinary law where ordinary criminal part intent is applies: rule law

common Mor proved. must and intent

the crime 246, 72 States, 342 U.S. v. United issette (1952); United L.Ed. 288 Wholesalers, F.2d National States

at 950. SOLER, Plaintiff-Appellant, Carlos suggest what will reflection

A moment’s theory would mean Every lawsuit practice of law. FCI-Safford, Warden, SCOTT, Roger F. asser- in a written ends States the United Prisons; AZ; Bureau of States United certain of a payment demand tion or Naturalization Immigration If States. money by the United sum of Defendants-Appellees. Service, forming any statement inaccuracy in 89-16051. No. filing of a constitutes complaint lawyers will be many claim, great false Appeals, Court U.S.C. under prosecution subject Circuit. Ninth ad is a reductio supposition 287. judges 1990.* lawyers and Oct. If some Submitted absurdum. severe, what too 11 is Fed.R.Civ.P. think 12, 1990. Oct. Vacated Submission crimi- think of lawyer or any would Aug. Resubmitted practice under civil nalizing federal 1, 1991. Aug. nois Decided But there Act? False Claims Federal distinguishing what way of right, what, if it is here

has done its that aroused lawyer do to

could in tort inaccuracy in a suit

indignation 34(a). * Fed.R.App.P. Cir.R. 34-4 submis- appropriate for case panel finds this pursuant argument ninth oral without sion

Case Details

Case Name: United States v. Kenneth Barker

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 7, 1991

Citation: 942 F.2d 585

Docket Number: 89-10105, 89-10228

Court Abbreviation: 9th Cir.