United States v. Hornsby

• Decision Date: 25 January 2012
• Docket Number: No. 08–5267.,08–5267.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Andre J. HORNSBY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

276 Ed. Law Rep. 27

666 F.3d 296

UNITED STATES of America, Plaintiff–Appellee,

v.Andre J. HORNSBY, Defendant–Appellant.

No. 08–5267.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2011.Decided: Jan. 25, 2012.

ARGUED: Robert Charles Bonsib, Marcus & Bonsib, Greenbelt, Maryland, for Appellant. Stuart A. Berman, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Megan E. Green, Marcus & Bonsib, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Michael R. Pauze, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge SHEDD and Judge DAVIS joined.

OPINION

GREGORY, Circuit Judge:

After a four-year federal criminal investigation into corruption within Maryland's Prince George's County Public Schools (“PGCS”), its chief executive officer, Andre J. Hornsby, was convicted of several counts of honest-services fraud, tampering with evidence, and obstruction of justice. At the heart of these convictions is Hornsby's involvement in securing two public contracts for school products and services. On appeal, Hornsby raises a number of claims of error.¹ For the following reasons, we reverse the convictions of honest-services fraud and affirm the convictions of tampering with evidence and obstruction of justice. We vacate the sentences and remand the case for re-sentencing on the tampering and obstruction convictions.

I.

A.

This case arises from Hornsby's involvement in the consummation of two public contracts for school supplies and school-related services, only one of which is at issue on appeal.² Under this contract, PGCS purchased educational supplies and technology from the company LeapFrog SchoolHouse.

(1) The LeapFrog Contract

In May 2004, Hornsby suggested that PGCS establish a summer program for kindergarten students and use LeapFrog products for the program. PGCS's instructional technology chief contacted LeapFrog's Maryland sales representative, Debora Adam, and requested a proposal for the summer program. Adam sent PGCS a written proposal for LeapFrog products worth approximately $67,994. PGCS did not act on the proposal.

On June 2, 2004, Hornsby held an executive council meeting to discuss using one million dollars of unspent funds toward purchasing LeapFrog products for the school district. The estimated cost of installing LeapFrog products in 216 classrooms was $938,746.80. Wesley Watts, the chief information officer for PGCS, forwarded the estimate to Hornsby and told Hornsby that he preferred to have Eugene Thornton, the director of purchasing for PGCS, speak with LeapFrog regarding the purchase. Hornsby e-mailed Watts indicating that he could get the same result for far less money.

The following day, Hornsby met with his then-girlfriend Sienna Owens, who was a LeapFrog sales representative, and discussed PGCS's interest in purchasing LeapFrog products. Although Owens's sales territory was exclusively in the state of Virginia, she agreed to inquire about the purchase of the LeapFrog products for PGCS's 216 classrooms for a cost of around $500,000. On June 8, Owens e-mailed Hornsby with a proposal of the costs for the products. In turn, Hornsby provided Thornton with the substance of Owens's e-mails but deleted all references to Owens.

The next day, Owens e-mailed Bill Davis, LeapFrog's director of sales for the northeast region, a final copy of the PGCS proposal. Because Adam was the Maryland sales representative and typically would receive the commission for the PGCS sale, Owens asked Davis for Adam's most recent total in sales so that she could compute a commission share structure between herself and Adam. On June 10, 2004, Owens e-mailed Hornsby, requesting that he call Davis to discuss the purchase order. That same day, Hornsby spoke with Davis and agreed to the purchase order; he further told Davis that Owens had done a good job in positioning and selling LeapFrog products to PGCS. Later, PGCS issued a purchase order to LeapFrog and paid the company $956,280 for the products.

During this time, Adam and Owens agreed to split the commission from the PGCS contract. Owens's share of the commission amounted to $20,000. Having received her share, Owens testified that she gave Hornsby $10,000 “[a]s a thank you for helping me with this deal and for helping me. It was the first time I had received a significant commission in connection with the help that he had given me, so it was a thank you gesture.” J.A. 1691.

(2) The Federal Investigation

On October 14, 2004, The Baltimore Sun published an article that questioned Hornsby's and Owens's relationship and their involvement with the LeapFrog contract. Shortly after the newspaper probe, Hornsby instructed Watts to destroy any back-up tapes of his PGCS e-mails. Following this instruction, the PGCS e-mail specialists began to erase these tapes; however, one specialist saved certain tapes containing Hornsby's e-mails and turned them over to the FBI after government agents executed a search warrant at the school system.

A day after The Baltimore Sun article, the FBI and the U.S. Attorney's Office initiated an investigation into the LeapFrog contract. As part of its investigation, the FBI instructed Cynthia Joffrion, an employee of Hornsby's private consulting business, to inform Hornsby that her husband received a subpoena for Hornsby's computer files that were in her possession. On February 7, 2005, Joffrion informed Hornsby of the subpoena and that she possessed his computer containing information regarding the contract. Hornsby instructed Joffrion to “get [the computer] out of there totally.” Supp. J.A. 471.

This was not the first occasion that Hornsby instructed Joffrion to conceal evidence during a criminal investigation. Four years earlier, Hornsby was the subject of a New York state criminal investigation into his conduct as superintendent of the Yonkers Public Schools in Westchester County, New York, and an alleged theft of school computers. During this investigation, Hornsby instructed Joffrion, then a Yonkers public school employee, to ship several school-system computers to his relatives' homes. During recorded phone conversations between Hornsby and Joffrion, Hornsby encouraged Joffrion to lie to the government about her knowledge of the theft. He also encouraged her to burn any paper that was connected with the computers.

Hornsby also contacted Owens during the LeapFrog investigation. On one occasion, Hornsby sent his daughter to travel to Miami, Florida, to meet with Owens and instruct her to “stick to the story.” His daughter also gave Owens a prepaid phone to use to communicate with Hornsby. Before Owens was set to testify before the grand jury, Hornsby called Owens and told her not to cooperate with the investigation against him. The following day, Owens testified before the grand jury, which returned the first indictment against Hornsby.

(3) PGCS Board of Education Investigation

After the release of the newspaper article, Dr. Beatrice Tignor, the chair of the Prince George's County Board of Education, called Hornsby to ask him about the LeapFrog contract and the allegations made within the article. Hornsby told Tignor that the allegations were untrue and that Owens did not have a role in the contract.

Under the belief that Owens played no role in the LeapFrog contract, Tignor wrote to the Board of Education Ethics Panel asking the Panel to examine two inquiries: (1) whether a conflict of interest existed when the school system purchased LeapFrog products given that Hornsby, as CEO, maintained a relationship with Owens who did not do business with PGCS and did not handle the PGCS LeapFrog purchase and (2) whether Hornsby was required to disclose his personal relationship with Owens to PGCS when she did not work for LeapFrog at the time his financial disclosure form was submitted.

Both inquiries were based on board policies that governed Hornsby as an employee of PGCS. PGCS Policy No. 109 governs “Conflict[s] of Interest” and prohibits employees from participating “on behalf of the school system in any matter that would, to their knowledge, have a direct financial impact, as distinguished from the public generally, on them, their spouse, domestic partner, or immediate family member, or a business entity with which they are affiliated....” J.A. 2644. Another policy governed school official financial disclosures. The policy required an official to file “an annual statement with the Ethics Panel disclosing any interest or employment that would constitute a conflict of interest and require disqualification from working on behalf of the school system,” and to disclose “any gifts received ... from any person ... having a contract with the school system, or seeking to do business with the school system.” J.A. 2646.

Although Hornsby received a copy of the inquiries, he did not correct Tignor's mistaken belief that Owens had nothing to do with the LeapFrog contract. He later represented in his financial disclosure statement that he had not received any income from a person or business that was a party to an existing contract with the school system.

A month later, the panel answered both inquiries. In its opinion, there was no conflict of interest arising from the LeapFrog contract, and further, Hornsby was not legally required to disclose his personal relationship at the time of his financial disclosure statement, although he may have been required to do so under another ethical policy.

On January 12, 2005, the board hired the Huron Consulting Company to investigate any ethical violations with respect to the LeapFrog contract. As part of its investigation, Huron interviewed Hornsby with his lawyer present. Hornsby stated that he had...