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Walker - Walker's Trial Brief

Walker - Walker's Trial Brief

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Published by: beaumontenterprise on Dec 05, 2011
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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXASBEAUMONT DIVISIONUNITED STATES OF AMERICA §§VS. § NO. 1:11-CR-67§CALVIN GARY WALKER §
WALKER’S TRIAL BRIEF
 TO THE HONORABLE RON CLARK:Calvin Gary Walker, Defendant, files this brief to summarize some of the expectedevidence and address issues to be tried in this case.
Introduction
 Walker, doing business as Walker’s Electric Company, had a series of contracts toprovide electrical maintenance services (the maintenance contracts) to Beaumont IndependentSchool District (BISD) in 2008, 2009 and 2010.
1
Every count of the Indictment is predicated on the assumption that a maintenancecontract controlled what Walker was to be paid for the particular projects specified in thoseThe Indictment alleges that, in each of thoseyears, Walker submitted invoices and supporting documents that falsely inflated Walker’s costs.This conduct allegedly had the effect of fraudulently increasing the amount BISD owed Walkerbecause the maintenance contracts provided that Walker was to be paid his costs plus tenpercent.
1
Walker began providing electrical services to BISD as early as 2006, but the Indictment isbased on events occurring between September 2008 and December 2010. Walker bid for andwas awarded a maintenance contract in August 2008. That original maintenance contract wassimply extended in 2009. In May 2010, BISD again awarded the maintenance contract toWalker after a bidding process. The 2010 contract was a revision of the 2008 contract, but withonly minor changes.
Case 1:11-cr-00067-RC -KFG Document 71 Filed 11/23/11 Page 1 of 13 PageID #: 670
 
2counts.
2
To facilitate the analysis, the counts of the Indictment are grouped according to theprojects they are based on. Each project will be considered in turn.This assumption is the critical flaw in the government’s case. The projects at issue inthe Indictment were actually controlled by agreements distinct from the maintenance contracts.Because of this, the government’s contention that Walker submitted fraudulent documents toBISD to secure payment is beside the point. Walker did not need, and was not required, tosubmit any documents to substantiate his actual costs for the projects in the Indictment. With theexception of the Regina Howell and South Park temporary campuses, discussed below, theprojects in the Indictment were not undertaken on the cost-plus basis embodied in themaintenance contracts. Walker completed the projects in the Indictment on a flat-fee basis.BISD agreed to those flat fees before Walker began the work.
Counts 1, 4, 5, 6, 17 and 18—Ozen High School Field Lighting
Ozen High School has football, softball and baseball fields, all of which have lights. InFebruary 2008, BISD awarded a $95,014 contract to A&A Electric to replace the light poles atOzen’s football field. A&A was unable to complete the work before September 2008 because itreceived the wrong materials from its supplier. Hurricane Ike struck the upper Texas coast onSeptember 13, 2008, causing widespread damage to BISD campuses. After the storm, muchmore work was needed on Ozen’s fields than originally conceived.On September 28, 2008, the BISD board approved emergency procurement status thatallowed the district to implement expedited procurement procedures to repair Ike’s damage. OnFebruary 19, 2009, the BISD board awarded contracts to A&A Electric and to Walker’s Electric
2
 
See
Indictment (Dkt. 2) at 2 (“As part of the written contract with BISD, [Walker] was toprovide electrical supplies and materials at cost plus a ten percent mark-up. Additionally, anyuse of subcontractors for an electrical project was also to be provided at cost plus a ten percentmark-up.”)
Case 1:11-cr-00067-RC -KFG Document 71 Filed 11/23/11 Page 2 of 13 PageID #: 671
 
3Company to repair damage to and otherwise upgrade Ozen High School’s field lighting.
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BISDcontracted with A&A to repair the football field’s lights for $786,008. BISD separatelycontracted with Walker to repair the softball and baseball fields’ lights for $1,236,000.
4
Walker completed the contracted-for work at Ozen’s softball and baseball fields in April2009, and billed BISD for the agreed-upon price of $1,236,000. That work was not within thescope of the maintenance contract awarded to Walker in August 2008. 
5
Counts 1, 4, 5, 6, 17 and 18 are premised on the incorrect notion that the maintenancecontract applied to Walker’s work at Ozen’s softball and baseball fields. The allegation thatWalker submitted false material costs in the amount of $647,000 to BISD is, therefore, notrelevant. Submission of $647,000 of material costs, false or not, would not have pumped up theamount that BISD owed Walker. The work at Ozen’s fields was provided for a flat fee, not on acost-plus basis as stated in the Indictment.Consequently, that work was not subject to the cost-plus-ten-percent terms of the maintenance contract.The TEA’s view of Walker’s Ozen field contract is consistent with the view set out here.The TEA did not take issue with BISD’s assertion that the Ozen field contract “did not fallwithin the scope” of the maintenance contract. Instead, the TEA concluded that BISD shouldhave put the Ozen field work out for bid rather than awarding it to Walker as it did.
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Exhibit 1—Excerpt from BISD Board’s Minutes.If the TEAbelieved that the maintenance contract required Walker to complete the Ozen field work on analready established cost-plus basis, the TEA would not have found that the same work should
4
Exhibit 2—Contract for Ozen’s lights and related documents.
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In response to a Texas Education Administration (TEA) investigation into this matter, BISDexpressly stated, “Although Walker’s Electric had been awarded the [maintenance contract] onAugust 21, 2008, the light pole replacement and related work did not fall within the scope of thatcontract.” Exhibit 3—Letter from BISD, p. 3.
6
Exhibit 4—TEA Final Investigative Report.
Case 1:11-cr-00067-RC -KFG Document 71 Filed 11/23/11 Page 3 of 13 PageID #: 672

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