The Supreme Court's opinion in United States v. Skilling marked a sea change in how the government prosecutes public corruption cases. It used to be that all the government had to prove is that a public figure had a conflict of interest and didn't disclose it. After Skilling, that is no longer a crime.
As the Third Circuit recently discussed, federal circuit courts are unwinding prior prosecutions of public officials for failing to disclose conflicts of interest since that is no longer a crime.
Last week, it was the Fourth Circuit's turn in United States v. Hornsby. The Fourth Circuit reversed Mr. Hornsby's conviction for honest services fraud, but did not undo his conviction for obstructing justice to hide his honest services fraud.
In essence, Mr. Hornsby will spend time in prison for covering up a crime that didn't exist.
The Thing Which Is No Longer A Crime
Andre Hornsby was the chief executive officer of the school system in Prince George's County, Maryland.
His girlfriend was a sales representative for LeapFrog - a company that sells educational products to school systems.
Though it's a little convoluted, Mr. Hornsby was able to have Prince George's County purchase Leapfrog products. His girlfriend received a $20,000 commission for the deal. She generously shared it with Mr. Hornsby - and gave him half.
The Cover Up Of The Not-A-Crime
The Baltimore Sun wrote a story about Mr. Hornsby, his girlfriend, and the LeapFrog deal. The next day the Maryland United States Attorney's Office launched an investigation into the LeapFrog deal.
Mr. Hornsby, upon reading the Baltimore Sun article, ordered that all of his emails be deleted. Sadly, it's hard to find good help these days - one of the computer specialists not only didn't destroy Mr. Hornsby's emails, but turned them over to federal law enforcement.
Mr. Hornsby also had a private consulting firm, and a woman named Cynthia Joffrion worked for him in that business. The FBI told her to tell Mr. Hornsby that they had issued a subpoena for her computer, which had files on it relating to the LeapFrog deal. She did. Mr. Hornsby told her to hide the computer.
Of course, one doesn't become the CEO of a large school district without prior experience. Mr. Hornsby had previously been the superintendent of Yonkers Public Schools in Westchester County, New York.
When Mr. Hornsby was in Yonkers, Ms. Joffrion worked for him. At one point, he was under investigation there. When he learned he was under investigation, he told Ms. Joffrion to get any computers with evidence on them to her relatives. Then, on a recorded call, he told her to burn any paper associated with the ethics allegations. [FN1]
Mr. Hornsby In The District Court
Mr. Hornsby was charged with honest services fraud and obstruction of justice. He was tried in the federal courthouse in Greenbelt, Maryland. His jury hung and the district court declared a mistrial.
A grand jury returned a superseding indictment against him, charging him with more honest services fraud, obstruction of justice, and tampering. He was convicted of some counts of honest services fraud, obstruction of justice, and tampering.
He was sentenced to seventy-two months in prison on all the counts of conviction, to be served concurrently.
Skilling Changes The Rules
After the trial, the Supreme Court decided United States v. Skilling - making it no longer a crime for a public official to decline to disclose a conflict of interest.
The Fourth Circuit found that Mr. Hornsby's convictions for honest services fraud could not survive after Skilling. The court of appeals vacated the conviction for those counts.
On the obstruction and tampering counts, Mr. Hornsby argued that they needed to be vacated as well. He made a number of arguments - the most interesting being that the jury's deliberations on the obstruction counts were contaminated by the idea that he had committed a crime based on honest services fraud. [FN2]
Here, Mr. Hornsby fared less well. The court of appeals noted that even if the government had just gone to trial on the obstruction counts, it would have been able to bring all of the other evidence about LeapFrog in at trial under Rule 404(b). (for a discussion of Rule 404(b), see this post).
So, in the end, Mr. Hornsby will go for resentencing. But will still be convicted of obstruction.
[FN1] - Really? She was recording his calls in New York? Years before this case?
[FN2] - Mr. Hornsby did not argue that obstruction is impossible if there's no underlying crime - regardless of whether you violated the law, you don't get to destroy evidence that you think is responsive to a grand jury subpoena.