U.S. v. Kenney, 98-2128

Decision Date26 August 1999
Docket NumberNo. 98-2128,98-2128
Citation185 F.3d 1217
Parties(11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Brunson KENNEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeal from the United States District Court for the Northern District of Florida. (No. 5:97-CR-26-LAC), Robert L. Hinkle, Judge.

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and FORRESTER*, District Judge.

PER CURIAM:

Ronnie Brunson Kenney appeals his conviction for soliciting a gratuity as a public official in violation of 18 U.S.C. 201(c)(1)(B). On appeal, Appellant asserts that the District Court erred in denying his motion to dismiss due to pre-indictment delay; that the District Court erred in denying his motion to dismiss on the ground that he is not a "public official" as required by 18 U.S.C. 201(c)(1)(B); that the trial court erred in denying his motion for a judgment of acquittal on the ground that the government failed to prove an allegation in the indictment; and that the trial court incorrectly charged the jury as to the definition of "public official" pursuant to 18 U.S.C. 201(c)(1)(B). We conclude that Appellant's assignments of error are unavailing and therefore affirm his conviction.

I. PROCEDURAL BACKGROUND

Appellant was charged in a three-count indictment arising out of the United States District Court for the Northern District of Florida, Panama City Division. In the indictment, Appellant was charged with three separate counts of soliciting a bribe as a public official in violation of 18 U.S.C. 201(b)(2)(A). Prior to trial, Appellant filed two motions to dismiss the indictment. One of these motions was based upon pre-indictment delay and the other was based upon the assertion that Appellant was not a "public official" as that term is defined by 18 U.S.C. 201. United States District Judge Robert Hinkle deferred ruling upon these motions pending the presentation of evidence in the case.

On August 25, 1997, a jury was impaneled and trial began. At the close of the government's case, Appellant made a motion for a judgment of acquittal based upon the failure of the government to prove that he was a public official and that he was a "contract manager" as charged in the indictment. This motion was denied and trial proceeded. At the close of evidence, Appellant renewed his motion for a judgment of acquittal. The District Court again denied this motion and also denied the pending motions to dismiss.

On August 29, 1997, the jury returned verdicts of guilty of the lesser included offense of soliciting a gratuity under Counts 1 and 3 and not guilty as to Count 2. Appellant was sentenced on January 13, 1998 before Judge Hinkle. Appellant was sentenced to two concurrent terms of eighteen months of probation, ten months of which are to be served in home detention. In addition, Appellant was fined $40,000 and ordered to pay a $200.00 special assessment. The imposition of sentence was stayed pending appeal, and Appellant filed a timely notice of appeal on January 26, 1998.

II. FACTS
A. The Edge-Marker Contract and Appellant's Duties with Respect to it

Appellant was an employee of BDM International, Inc. ("BDM"), and his official job title was "Manager, Rapid Runway Repair Branch." BDM is a large publicly traded company that, among other things, does extensive government contract work with the Department of Defense. In 1988, BDM received a Systems Integration Support Contract from the United States Air Force. Pursuant to this contract, BDM provided manpower to supplement Air Force Functions. As part of the support provided, BDM supplied acquisition management and engineering personnel to assist the Air Force Civil Engineering Services Agency in procuring and approving materials and equipment. Pursuant to this general contract, BDM employees were assigned to assist in specific ongoing Air Force projects, or tasks.

In September of 1992, officials at Tyndall Air Force Base in Florida awarded a contract to Starflite Boats of Niceville, Florida, pursuant to which Starflite would provide the Air Force with a runway edge-marker system for its runway repair program. An edge marker is used to mark runway damage on a combat zone airfield and consists of a Styrofoam reflector mounted on top of a thirty inch by forty-eight inch rubber mat. Also, as part of the contract, Starflite was to ship the edge markers in wooden shipping containers intended to last fifteen years. As part of its bid, Starflite suggested the possibility of manufacturing more durable and less expensive boxes out of fiberglass.

After the contract was awarded, a post-award conference was held. Among other things, the purpose of this meeting was to finalize the details of the performance of the contract, introduce the principal of Starflite, Mr. Brown, to the people with whom he would be working during the administration of the contract, and establish channels of communication. The minutes from this conference show that it was chaired by Sue Harris, the Air Force contract administrator. These minutes also show that the contracting officer for this contract was Larry G. Edwards, the project manager was Douglas A. Orlando, and Lt. Col. Michael C. Chatham was the officer in charge of the project. All of these individuals were Air Force employees. In addition, pursuant to the BDM-Air Force contract, Appellant was assigned by BDM to serve as its Acquisition Manager to support the performance of this contract.

At the post-award conference, Appellant was introduced to Mr. Brown as the day-to-day contact on the project, and Mr. Brown was told that if anything came up, he should contact Appellant. (R2-47.) Mr. Brown was also informed that Appellant would serve as the "eyes and ears" of the Air Force during the administration of the contract and would report the status of the contract, progress made, and any problems encountered by Starflite. As a result, Mr. Brown believed that Appellant was the engineer on the project and had the authority to approve or disapprove most anything concerning the project. (R2-46.)

In reality, as Acquisition Manager Appellant did not have final decision-making authority and could not bind the government. He did, however, advise decision makers with respect to certain technical issues involved in the edge-marker contract. According to the task description for this project, Appellant's job responsibilities included the provision of "program management, field test support, technical reviews and support for technical meetings when requested by the Chief, Airfield Systems Branch in support of the MOS Marking program." See Record Excerpt 773A. In addition, testimony at trial described Appellant's role, variously, as: Providing "technical data ... to the people in the government who were making decisions regarding the procurement" and to provide advice based upon that information (R4-489-91; R5-636); processing or evaluating information for use by others in making official government decisions (R4-492; R5-636); functioning as the "eyes and ears" for the Air Force throughout the performance of the contract (R4-519; R3-238); ensuring that the contractor used specified products in the prescribed manner to get the prescribed product, or, in other words, managing the performance of the contract (R2-47); and providing technical advice to support the government in their acquisition of civil engineering systems for the Air Force. (R3-342). Ms. Harris also testified that Appellant held a position of official federal trust. (R3-269.)

In addition, the testimony indicates that Appellant's recommendations and advice were given great weight by those Air Force officials in the position to make procurement decisions. (R3-238; R3-331; R4-512-13.) The evidence shows that, on at least one occasion, Ms. Harris adopted Appellant's recommendation. Appellant had input in at least two decisions to substitute equivalent components. (R2-71; R3-329-30.) Also, Mr. Brown testified that when he spoke to Ms. Harris and Mr. Edwards about substituting an equivalent rubber mat for that specified in the contract, both stated that the approval of the equivalent would be Appellant's decision. Finally, although Appellant's salary was not paid by Air Force, testimony indicates that his salary is paid by BDM directly from funds it receives from the government in payment for services under the contract. (R3-352.)

B. The Solicitations

It is alleged in the indictment that in November of 1992, Appellant suggested to Mr. Brown that Mr. Brown could cut costs by using a different brand of rubber mats than that specified in the contract. Appellant offered to approve the change if Mr. Brown would pay him one-half of the cost savings. In addition, in March of 1992, Appellant and Mr. Brown discussed Mr. Brown's preference for using cheaper fiberglass shipping boxes rather than the wooden ones specified in the contract. Again, Appellant told Mr. Brown he could have the contract modified if Mr. Brown would pay him $100.00 per box. At a later date, the contract was in fact modified to allow for the use of the fiberglass boxes. Further, an equivalent mat was eventually used, although not the original equivalent sought by Mr. Brown. Mr. Brown, however, never paid the above-described sums. Instead, he reported Appellant's solicitations to Air Force officials.

After Mr. Brown's report, the Federal Bureau of Investigation (FBI) and the Air Force conducted a joint investigation and on May 24, 1993 recorded an incriminating conversation between Mr. Brown and Appellant on both video and audio tape. Thereafter, the investigation was put on hold for the duration of the contract because law enforcement officials wanted to observe Appellant actually receiving illegal payments. The investigation was also delayed due to health problems suffered by Appellant. Eventually, however, investigators closed the investigation in late 1996 and Appellant was indicted on June...

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    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 25 Octubre 2007
    ...accurately state the law, the trial judge has wide discretion to determine their style and wording. United States v. Kenney, 185 F.3d 1217, 1222-23 (11th Cir. 1999) (per curiam).29 Again assuming that Browne correctly asserts that the supervisory exclusion applies to § 186, it follows that ......
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    ...instructions accurately state the law, the trial judge has wide discretion to determine their style and wording. United States v. Kenney, 185 F.3d 1217, 1222-23 (11th Cir.1999). 1. Disjunctive conspiracy instruction. Defendants were charged with committing a single conspiracy with two unlaw......
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5 books & journal articles
  • Public corruption.
    • United States
    • American Criminal Law Review Vol. 46 No. 2, March 2009
    • 22 Marzo 2009
    ...open-ended definition of 'public official' in [section] 201(a) to be given [a] cramped reading...."); see also United States v. Kenney, 185 F.3d 1217, 1221-22 (11th Cir. 1999) (stating that a defense contractor employee who did not have the final say but whose "input [was] given sufficient ......
  • Public corruption.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • 22 Marzo 2008
    ...open-ended definition of 'public official' in [section] 201(a) to be given [a] cramped reading...."); see also United States v. Kenney, 185 F.3d 1217, 1221-22 (11th Cir. 1999) (stating that a defense contractor employee who did not have the final say but whose "input [was] given sufficient ......
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    • United States
    • American Criminal Law Review Vol. 42 No. 2, March 2005
    • 22 Marzo 2005
    ...[section] 201(a)'s open-ended definition of 'public official' to be given [a] cramped reading."); see also United States v. Kenney, 185 F.3d 1217, 1221-22 (11th Cir. 1999) (stating that a defense contractor employee who did not have the final say but whose "input [was] given sufficient weig......
  • Public corruption.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • 22 Marzo 2006
    ...[section] 201(a)'s open-ended definition of 'public official' to be given [a] cramped reading...."); see also United States v. Kenney, 185 F.3d 1217, 1221-22 (11th Cir. 1999) (stating that a defense contractor employee who did not have the final say but whose "input [was] given sufficient w......
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