United States v. Hornsby

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-5267

ANDRE J. HORNSBY,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, Senior District Judge.

(8:06-cr-00376-PJM-1)

Argued: October 28, 2011

Decided: January 25, 2012

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.

COUNSEL

ARGUED: Robert Charles Bonsib, MARCUS & BONSIB,

Greenbelt, Maryland, for Appellant. Stuart A. Berman,

OFFICE OF THE UNITED STATES ATTORNEY, Green-

belt, Maryland, for Appellee. ON BRIEF: Megan E. Green,

2 UNITED STATES v. HORNSBY

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.

OPINION

GREGORY, Circuit Judge:

After a four-year federal criminal investigation into corrup-

tion within Maryland’s Prince George’s County Public

Schools ("PGCS"), its chief executive officer, Andre J. Horn-

sby, 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 secur-

ing 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 con-

summation of two public contracts for school supplies and

school-related services, only one of which is at issue on appeal.2

1

Because we reverse the honest-services fraud convictions based on the

district court’s erroneous jury instruction, we need not consider Hornsby’s

alternative basis for their reversal: that the district court erred when it

barred the admission of certain portions of Hornsby’s statements that he

argues are relevant to whether he engaged in a scheme to defraud. Appel-

lant Br. at 20-37.

2

The second contract involved PGCS hiring a company, E-Rate Manag-

ers, to provide technical services to complete the public school system’s

UNITED STATES v. HORNSBY 3

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 pro-

gram. 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 meet-

ing 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 infor-

mation 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

application process for the E-Rate program. The E-Rate program is a fed-

erally subsidized program that provides discounts to schools on their tele-

communications, internet access, and computer networking. The

Government presented evidence that Hornsby owned E-Rate Managers

and expected to receive part of the profit made from the E-Rate contract.

Hornsby was not convicted on any count supported by allegations arising

from this contract.

4 UNITED STATES v. HORNSBY

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 pro-

vided 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 repre-

sentative 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 struc-

ture 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 Leap-

Frog 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 com-

mission from the PGCS contract. Owens’s share of the com-

mission 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 con-

nection 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 arti-

cle 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 instruc-

tion, the PGCS e-mail specialists began to erase these tapes;

however, one specialist saved certain tapes containing Horns-

UNITED STATES v. HORNSBY 5

by’s e-mails and turned them over to the FBI after govern-

ment 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 Cyn-

thia Joffrion, an employee of Hornsby’s private consulting

business, to inform Hornsby that her husband received a sub-

poena for Hornsby’s computer files that were in her posses-

sion. On February 7, 2005, Joffrion informed Hornsby of the

subpoena and that she possessed his computer containing

information regarding the contract. Hornsby instructed Joff-

rion to "get [the computer] out of there totally." Supp. J.A.

471.

This was not the first occasion that Hornsby instructed Joff-

rion 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 com-

puters to his relatives’ homes. During recorded phone conver-

sations 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 con-

nected with the computers.

Hornsby also contacted Owens during the LeapFrog inves-

tigation. 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.

6 UNITED STATES v. HORNSBY

(3) PGCS Board of Education Investigation

After the release of the newspaper article, Dr. Beatrice Tig-

nor, the chair of the Prince George’s County Board of Educa-

tion, called Hornsby to ask him about the LeapFrog contract

and the allegations made within the article. Hornsby told Tig-

nor 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 con-

flict 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 sub-

mitted.

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 mat-

ter 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 dis-

closures. 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 per-

son . . . having a contract with the school system, or seeking

to do business with the school system." J.A. 2646.

UNITED STATES v. HORNSBY 7

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 exist-

ing 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 known Owens for three years, that their current

relationship was a friendship, and that she had lived with him

when she was hired by LeapFrog. He denied knowing that

Owens had any role in PGCS’s LeapFrog contract. Hornsby

stated that he had not disclosed to PGCS his relationship with

Owens at the time of the LeapFrog purchase because he

believed it was not required by board policy.

B.

On August 22, 2006, a grand jury returned an indictment

against Hornsby for twelve counts of honest-services wire

fraud in violation of 18 U.S.C. §§ 1343 and 1346 and three

tampering and obstruction counts in violation of 18 U.S.C.

§§ 1512(b) and 1503. The jury trial began on October 16,

2007, and after twenty-one days, the district court declared a

mistrial.

On April 23, 2008, a second grand jury returned a super-

seding indictment charging Hornsby with eighteen counts of

8 UNITED STATES v. HORNSBY

honest-services fraud in violation of 18 U.S.C. §§ 1341, 1343,

and 1346, two counts of witness and evidence tampering in

violation of 18 U.S.C. § 1512(b), and one count of obstruction

of justice in violation of 18 U.S.C. § 1503.

The second jury trial began on June 18, 2008. At the close

of the Government’s case-in-chief, Hornsby moved for judg-

ment of acquittal on all counts. The district court denied the

motion. The jury returned a guilty verdict on three counts of

honest-services fraud (counts 6, 7, and 10). The jury further

found Hornsby guilty of two counts of witness and evidence

tampering (counts 19 and 20) and one count of obstruction of

justice (count 22). The jury found Hornsby not guilty on one

count of honest-services fraud (count 13) and one count of

witness tampering (count 21). The jury could not reach ver-

dicts on the remaining counts. The district court sentenced

Hornsby to seventy-two months’ imprisonment for all convic-

tions to be served concurrently.

II.

Hornsby challenges his convictions for honest-services

fraud, witness and evidence tampering, and obstruction of jus-

tice on several grounds. We first address whether the district

court’s erroneous jury instruction on honest-services fraud

requires the reversal of Hornsby’s convictions. We then

address arguments challenging the district court’s rulings with

respect to the tampering and obstruction counts.

A.

Hornsby contends that his convictions for honest-services

wire fraud must be reversed. He reasons that the jury instruc-

tion, the superseding indictment, and the Government’s case-

in-chief put forth a conflict-of-interest theory of guilt for

honest-services fraud that has been disapproved by the

Supreme Court in Skilling v. United States, 130 S. Ct. 2896

(2010). In Skilling, the Supreme Court addressed the scope of

UNITED STATES v. HORNSBY 9

the honest-services fraud statute, 18 U.S.C. § 1346, and held

that the statute was not unconstitutionally vague when prop-

erly interpreted to criminalize only "fraudulent schemes to

deprive another of honest services through bribes or kick-

backs supplied by a third party who had not been deceived."

Id. at 2928. It reasoned, "Construing the honest-services stat-

ute to extend beyond that core meaning . . . would encounter

a vagueness shoal," id. at 2907, and thus rejected the govern-

ment’s contention that § 1346 also applied to conflict-of-

interest cases—cases where the employee has not disclosed a

conflicting financial interest to the employer, id. at 2932.

In light of Skilling, the Government concedes that the dis-

trict court erred when it instructed the jury that it could con-

vict Hornsby for honest-services fraud based on a conflict of

interest. It contends, however, that because Hornsby did not

raise this exact ground as an objection to the jury instruction,

we must review the instruction for plain error.

We disagree. Pursuant to Federal Rule of Criminal Proce-

dure 30(d), Hornsby timely objected to the jury instruction

and adequately raised an issue with the conflict-of-interest

theory of guilt for honest-services fraud. Before the jury

retired, Hornsby’s counsel objected to the jury instruction and

asserted that, as part of his objection, he was adopting and

incorporating with specificity arguments made within his

motion for judgment of acquittal.

The day before, Hornsby’s counsel moved for judgment of

acquittal and raised a challenge to the conflict-of-interest the-

ory of guilt for honest-services fraud presented in the super-

seding indictment and the Government’s case-in-chief.

Hornsby’s counsel asserted "that the Fifth Amendment due

process [clause] prohibit[s] a defendant from being held crim-

inally liable in circumstances where the conduct was not

clearly forbidden . . . and we believe that the whole ethics

thing . . . is unconstitutionally vague." J.A. 2280. Hornsby’s

counsel then requested that the district court either grant the

10 UNITED STATES v. HORNSBY

motion for judgment of acquittal or "alternatively redact those

portions of the allegations relating to anything pertinent to a

conflict of interest or ethics panel misrepresentations or omis-

sions." J.A. 2281. The district court denied the motion.

Because Hornsby timely objected to the instruction and

took issue with the conflict-of-interest theory of guilt by refer-

ence to his Rule 29 motion, we find his objection preserved.

United States v. Ebersole, 411 F.3d 517, 526 (4th Cir. 2005)

("[A] claim of instructional error may alternatively be pre-

served by an objection in a directed verdict motion made pur-

suant to Rule 29(a) of the Federal Rules of Criminal

Procedure, before the jury retires.").3 Thus, we review the jury

instruction for harmless error. Skilling, 130 S. Ct. at 2934;

Hedgpeth v. Pulido, 555 U.S. 57, 60-61 (2008) (per curiam)

(finding harmless-error review applies to an "instructional

error arising in the context of multiple theories of guilt.").

3

We find unpersuasive the Government’s argument that Hornsby did

not adequately raise the ground for his objection to the jury instruction

because his motion for judgment of acquittal was based, in part, on United

States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008). In Safavian, the

D.C. Circuit reversed the defendant’s convictions based on 18 U.S.C.

§ 1001(a)(1) because the government had not proven that the defendant

had a legal duty to disclose information to his federal employer. Id. at 965.

The court noted that to comply with the Fifth Amendment’s notice

requirements, § 1001(a)(1) must be read to only criminalize a failure to

disclose information where the defendant had the legal duty to disclose

and not where the defendant had an ethical duty to do so. Id. at 964-65.

Here, Hornsby’s counsel analogized Safavian to this case’s vagueness

challenge and argued that § 1346 was unconstitutionally vague as to

whether a violation of an ethical policy, i.e., Board Policy No. 109 Con-

flict of Interest, constituted honest-services fraud. Hornsby’s argument

directly addressed the conflict-of-interest theory of guilt and the vagueness

concerns there implicated. Compare Riley, 621 F.3d at 322 n.12 (applying

plain-error review to a Skilling challenge where the defendant objected to

the jury instructions but not on vagueness concerns and noting that "one

could view [plain-error] application here as somewhat harsh."). Hornsby’s

reliance on this case was not misplaced.

UNITED STATES v. HORNSBY 11

In the instant case, the jury found Hornsby guilty of three

out of the eighteen honest-services fraud counts. All three

counts are based on e-mail communications from Owens to

Hornsby as part of their negotiations to secure the LeapFrog

contract with PGCS. Because the findings of guilt were

returned on a general verdict, we cannot discern whether the

jury relied on a conflict of interest in reaching its decision.

See United States v. Black, 625 F.3d 386, 388 (7th Cir. 2010)

("[B]ecause the jury returned a general verdict on the fraud

counts, we cannot be absolutely certain that it found the

defendants guilty of pecuniary fraud as well as, or instead of,

honest-services fraud.").4 Therefore, we must view the jury

instruction in light of the evidence presented at trial to deter-

mine whether the erroneous instruction is harmless. United

States v. Hairston, 46 F.3d 361, 373 (4th Cir. 1995).

We begin with the language of the instruction. The instruc-

tion charged that the jury need not consider whether Hornsby

received a financial benefit from a third party as part of the

scheme or artifice to defraud PGCS and the Board of Educa-

tion. The instruction read in part:

When an official fails to disclose a personal interest

in a matter over which that official has decision-

making power, the public is deprived of its right

either to disinterested decision making or to full dis-

closure as to the official’s potential motivation

behind an official act . . . While an undisclosed

financial benefit from such decision making may

constitute a personal interest and such a personal

4

Hornsby argues that if kickback and bribes were the dominant theory

used to convict him, then the jury would have found him guilty of the

counts that deal directly with facts supporting Hornsby’s receipt of money.

A jury’s "failure to reach a verdict cannot – by negative implication –

yield a piece of information that helps put together the trial puzzle."

Yeager v. United States, 129 S. Ct. 2360, 2367 (2009). Thus, "[u]nlike the

pleadings, the jury charge, or the evidence introduced by the parties, there

is no way to decipher what a hung jury represents." Id.

12 UNITED STATES v. HORNSBY

interest as I’ve described, a financial benefit need

not be demonstrated in the case. That is they need

not show that the individual benefited financially

from the so-called failure to render honest services.

J.A. 2330. It further charged the jury that a "public official’s

duty and honesty includes the duty to disclose and not conceal

facts known to the official, . . . such as a personal conflict of

interest," id. (emphasis added), and that "The failure to dis-

close information may also constitute a fraudulent representa-

tion if the defendant was under a duty to make such a

disclosure," J.A. 2331. Based on this language, we cannot

ignore that the conflict-of-interest theory was "interwoven"

throughout the district court’s honest-services fraud instruc-

tion to the jury. United States v. Riley, 621 F.3d 312, 324 (3d

Cir. 2010).

What is more, the Government argued and presented strong

evidence to support the conflict-of-interest theory throughout

its case-in-chief. The evidence showed that at the time the e-

mail communications were made, Hornsby did not disclose to

PGCS his conversations with Owens to secure the LeapFrog

contract. Indeed, Hornsby acted to conceal the conflict by

deleting all references to Owens when he provided the direc-

tor of purchasing with the substance of the e-mail communi-

cations. Further, during PGCS’s investigation into Hornsby’s

involvement with the LeapFrog contract, Hornsby did not dis-

close his knowledge of Owens’s involvement and denied that

he had a direct role in the negotiations.

Additionally, in its closing argument after the district

court’s erroneous jury instruction, the Government stated that

"one of the most important jury instructions in this case is

[the] Judge[’s] [ ] instruction" on the definition of a scheme

or artifice to defraud. J.A. 2418. The Government continued:

He [the Judge] told you that a public official owes

citizens a duty to govern honestly, to govern impar-

UNITED STATES v. HORNSBY 13

tially, must disclose and not conceal important facts

about the conduct of the government’s affairs such

as a personal conflict of interest. He told you that

public officials may not deprive the public of its

right either to disinterested decision-making itself or

to a full disclosure as to the official’s potential moti-

vation behind an official act. You can’t have a con-

flict of interest and you can’t conceal a conflict of

interest. He told you it is not necessary to prove a

personal benefit or a financial benefit to the public

official, that the scheme is a crime regardless of

whether it succeeds or it fails.

...

Simply put, the defendant’s crime in this case is

fraudulently participating in decisions where his

business partner and his girlfriend had a stake and

concealing it from the board, Dr. Tignor, the ethics

panel and Huron, the board’s outside forensic audi-

tors.

J.A. 2418-19.

The Government did present evidence that Hornsby

received a $10,000 "gift" from Owens as a "thank you" for

helping her with the LeapFrog contract. While a reasonable

jury could infer from this evidence that Hornsby’s scheme to

defraud was all along a scheme with Owens to receive a kick-

back from the LeapFrog contract, we cannot say "with fair

assurance" that the jury convicted Hornsby on this basis

alone. Taylor v. Va. Union Univ., 193 F.3d 219, 235 (4th Cir.

1999).

In light of this evidence and the general verdict, we cannot

conclude that the erroneous jury instruction was harmless.

14 UNITED STATES v. HORNSBY

Accordingly, we reverse Hornsby’s convictions of honest-

services fraud.5

B.

Hornsby raises six independent arguments that challenge

his tampering and obstruction convictions. We address each

argument in turn.6

(1)

Hornsby contends that the district court’s decision to admit

evidence regarding his past conduct violated Federal Rule of

Evidence 404(b). As stated before, this evidence involved

Hornsby’s attempt to obstruct a New York state criminal

investigation into his alleged official misconduct.

We review a district court’s evidentiary rulings for abuse of

discretion. United States v. Aramony, 88 F.3d 1369, 1377 (4th

Cir. 1996).

Under Rule 404(b), "other crimes, wrongs, or acts" may be

excluded if the evidence is admitted to prove the defendant’s

bad character. However, this evidence is admissible for other

purposes, including "proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

or accident . . . ." United States v. Queen, 132 F.3d 991, 994

n.2 (4th Cir. 1997) (quoting FED. R. EVID. 404(b)). This Cir-

cuit applies a four-pronged test to determine the admissibility

of prior acts under Rule 404(b). The party moving for its

admission must show the evidence: (1) is relevant to an issue

other than character; (2) is necessary "in the sense that it is

5

We have considered Hornsby’s sufficiency of the evidence challenge,

and conclude that the challenge lacks merit.

6

To the extent that these arguments challenge the honest-services fraud

convictions, we need not address them due to our reversal of those convic-

tions.

UNITED STATES v. HORNSBY 15

probative of an essential claim or an element of the offense";

(3) is reliable; and (4) carries probative value that does not

substantially outweigh its prejudicial nature. Id. at 997. We

also have explained that an "additional protection against the

pitfalls the [R]ule protects against[,] may be provided by [ ]a

limiting jury instruction . . . explaining the purpose for admit-

ting evidence of prior acts." Id.

With respect to the first and second prongs, the Govern-

ment presented this evidence in order to prove the element of

intent. See Queen, 132 F.3d at 997. Prior acts that are similar

in nature to the charged acts have particular probative value

in showing the person’s state of mind because "the prior

doing of other similar acts . . . is useful as reducing the possi-

bility that the act in question was done with innocent intent."

Queen, 132 F.3d at 996 (quoting WIGMORE ON EVIDENCE,

§ 302 (Chadbourn rev. 1979) (footnote and internal quotation

marks omitted). Here, the evidence underlying Hornsby’s

conduct with respect to the state investigation was similar to

the evidence supporting the federal tampering counts. During

the state investigation, Hornsby tried to persuade Joffrion to

"burn" paperwork and conceal computers related to the

alleged theft of Yonkers public schools’ computers. Likewise,

during the federal investigation, Hornsby instructed Joffrion

to conceal a computer.

This evidence was also reliable. The evidence consisted of

an audio recording of Hornsby’s and Joffrion’s communica-

tions. Hornsby argues that the audio recording was unreliable

because the recording was uncorroborated and could be taken

out of context. Under prong three, "[e]vidence is reliable and

should be submitted to the fact finder unless it is ‘so prepos-

terous that it could not be believed by a rational and properly

instructed juror.’" Aramony, 88 F.3d at 1378 (quoting United

States v. Bailey, 990 F.2d 119, 123 (4th Cir. 1993)). An audio

recording of Hornsby telling Joffrion to burn documents and

conceal computers in the midst of a state criminal investiga-

tion is not so preposterous and unbelievable to make it unreli-

16 UNITED STATES v. HORNSBY

able. Further, corroborating evidence to support the prior-act

evidence is not required. United States v. Hernandez, 975

F.2d 1035, 1040-41 (4th Cir. 1992).

Finally, the probative value of this evidence was not sub-

stantially outweighed by unfair prejudice. Again, Hornsby

argues that the audio recording could be taken out of context

and thus be unfairly prejudicial. The mere assertion that the

recording could be taken out of context does not tip the scale

in favor of the prejudice outweighing the probative value, par-

ticularly when there is no indication that the prior-act evi-

dence would lead the jury to "irrational behavior" when

considering the other evidence. United States v. Masters, 622

F.2d 83, 87 (4th Cir. 1980). Further, we disagree with Horn-

sby that the four-year period between his prior acts and his

charged conduct renders his prior acts "tenuous and remote,"

and thus inadmissible, Hernandez, 975 F.2d at 1039 (quoting

United States v. Cole, 491 F.2d 1276, 1279 (4th Cir. 1974))

(internal quotation marks omitted), particularly given the sim-

ilarity between the prior and charged acts. Notably, the dis-

trict court instructed the jury that its consideration of this

evidence was confined to Hornsby’s intent with respect to the

tampering and obstruction counts. Thus, we find that the dis-

trict court did not err in admitting this evidence.

(2)

Next, Hornsby contends that the district court erred in

denying his motion for severance of the tampering and

obstruction counts from the honest-services fraud counts.

We review a district court’s denial of a motion for sever-

ance for abuse of discretion. United States v. Lighty, 616 F.3d

321, 348 (4th Cir. 2010).

Under Federal Rule of Criminal Procedure 8(a), an indict-

ment "may charge a defendant in separate counts with 2 or

more offenses if the offenses charged . . . are of the same or

UNITED STATES v. HORNSBY 17

similar character, or are based on the same act or transaction,

or are connected with or constitute parts of a common scheme

or plan." However, a district court may sever the offenses

charged if the joinder of the offenses "appears to prejudice"

the party. FED. R. CRIM. P. 14(a).

Where offenses are properly joined under Rule 8(a), sever-

ance of the offenses is rare. United States v. Cardwell, 433

F.3d 378, 387 (4th Cir. 2005) ("It is not enough for the defen-

dant to show that severance offers him ‘a better chance of

acquittal.’" (quoting United States v. Reavis, 48 F.3d 763, 767

(4th Cir. 1995))). "[A] district court should grant a severance

under Rule 14 only if there is a serious risk that a joint trial

would . . . prevent the jury from making a reliable judgment

about guilt or innocence." Id. (quoting Zafiro v. United States,

506 U.S 534, 539 (1993)). We will not reverse a district

court’s denial of a motion to sever unless there is a showing

of "clear prejudice." United States v. Branch, 537 F.3d 328,

341 (4th Cir. 2008).

Here, Hornsby has not shown "clear prejudice" in the join-

der of these counts. These counts are all related to the same

series of events—Hornsby’s involvement with the LeapFrog

contract and the subsequent investigations. As a result, joinder

under Rule 8(a) was appropriate. See United States v. Mir,

525 F.3d 351, 356-57 (4th Cir. 2008) (joinder of related

charges is permitted to avoid needless duplication of judicial

proceedings).

(3)

Hornsby’s third argument is that the district court erred

when it denied his motion in limine to suppress pre-

indictment statements he made to Joffrion who at that time

was an undercover Government informant. Hornsby states

that his counsel sent a letter to the Government dated Novem-

ber 9, 2004, asserting Hornsby’s constitutional rights as well

as his desire not to have any contact with Government agents.

18 UNITED STATES v. HORNSBY

He contends that the Government blatantly disregarded these

rights by instructing Joffrion to speak with him and in doing

so violated his Fifth, Sixth, and Fourteenth Amendment

rights.

We review a district court’s ruling on a motion in limine

for abuse of discretion. Malone v. Microdyne Corp., 26 F.3d

471, 480 (4th Cir. 1994). We review de novo the question of

whether the Government violated a defendant’s Fifth and

Sixth Amendment rights. United States v. Melgar, 139 F.3d

1005, 1008 (4th Cir. 1998) overruled on other grounds by

Texas v. Cobb, 532 U.S. 162 (2001). However, we "must take

care both to review findings of historical fact only for clear

error and to give due weight to inferences drawn from those

facts by resident judges and local enforcement officers." Id.

(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

The Fifth Amendment prohibits a suspect’s compelled self-

incrimination during custodial interrogation without advice

that the suspect has the right to remain silent and the right to

the presence of an attorney. Edwards v. Arizona, 451 U.S.

477, 481-82 (1981). Absent custodial interrogation, there is

no infringement on the suspect’s Fifth Amendment rights. Id.

at 486. The Sixth Amendment guarantees the right to counsel

"at or after the time that judicial proceedings have been initi-

ated . . . ‘whether by way of formal charge, preliminary hear-

ing, indictment, information, or arraignment.’" Fellers v.

United States, 540 U.S. 519, 523 (2004) (quoting Brewer v.

Williams, 430 U.S. 387, 398 (1977)). The Fourteenth Amend-

ment’s Due Process Clause affords individuals fundamental

guarantees against state action. See e.g., McDonald v. City of

Chicago, 130 S. Ct. 3020, 3031-36 (2010) (thoroughly dis-

cussing the Fourteenth Amendment’s scope and application to

state action). One such guarantee is the right to be heard

through the representation of counsel before an enforceable

judgment is rendered. Powell v. Alabama, 287 U.S. 45, 68-69

(1932) ("The right to be heard would be, in many cases, of lit-

UNITED STATES v. HORNSBY 19

tle avail if it did not comprehend the right to be heard by

counsel.").

In light of these principles, we find that Hornsby’s constitu-

tional rights were not violated by his communications with

Joffrion after the Government’s receipt of his counsel’s letter.

First, the Fourteenth Amendment’s Due Process Clause is a

limitation on state conduct, and thus Hornsby’s due process

protections against the federal government are found in the

Fifth Amendment. Cf. Paul v. Davis, 424 U.S. 693, 702 n.3

(1976) ("If . . . defamation by a state official is actionable

under the Fourteenth Amendment, it would of course follow

that defamation by a federal official should likewise be

actionable under the cognate Due Process Clause of the Fifth

Amendment."). Turning to the Fifth Amendment, use of an

undercover government agent before charges are filed does

not implicate a suspect’s Fifth Amendment rights because

there is no potential for compulsion. United States v. Henry,

447 U.S. 264, 272 (1980). Here, there was no potential for

compulsion because Hornsby was not subject to custodial

interrogation and was speaking with Joffrion over the tele-

phone. Supp. J.A. 470-71. Further, Hornsby’s Sixth Amend-

ment rights were not violated because there were no judicial

proceedings initiated against him at the time he made the

statements to Joffrion. See Fellers, 540 U.S. at 523. The grand

jury returned the first indictment on August 22, 2006, at least

one year after Hornsby’s and Joffrion’s communications.

Thus, we conclude that the letter written by Hornsby’s coun-

sel to the Government inquiring about the investigation does

not afford Hornsby constitutional protection in this context

and Hornsby has not directed this Court to any case law that

holds this proposition. For these reasons, we affirm the dis-

trict court’s denial of the motion in limine.

(4)

Further Hornsby contends that the district court erred in not

20 UNITED STATES v. HORNSBY

giving a jury instruction that defined reasonable doubt.7 A dis-

trict court’s refusal to give a specific jury instruction is

reviewed for abuse of discretion. United States v. Herder, 594

F.3d 352, 359 (4th Cir. 2010). To determine whether the jury

was properly instructed on the elements of the offenses, we

determine "whether, taken as a whole, the instruction fairly

states the controlling law." Id.

We find that the district court was not required to define

reasonable doubt to the jury so long as the jury was instructed

that the defendant’s guilt must be proven beyond a reasonable

doubt, Lighty, 616 F.3d at 380, which the district court did in

this case. Not requiring such an instruction is based on this

Circuit’s belief that "attempting to explain the words ‘beyond

a reasonable doubt’ is more dangerous than leaving a jury to

wrestle with only the words themselves." Id. (quoting United

States v. Walton, 207 F.3d 694, 698 (4th Cir. 2000) (en banc))

(internal quotation marks omitted).

(5)

Hornsby also argues that if we reverse the honest-services

fraud convictions, we must also reverse the tampering and

obstruction convictions. He maintains that without honest-

services fraud, the jury would have been presented with an

entirely different set of facts and that "it is plausible, if not

likely," that the jury would not have convicted him on the

tampering and obstruction counts. Although Hornsby does not

cite to any case law to guide our inquiry, it appears he has

presented a "prejudicial spillover" challenge to his tampering

and obstruction convictions.

7

Hornsby raises three additional challenges to the district court’s jury

charge, all of which pertain to the honest-services fraud counts and not the

tampering and obstruction counts. Because of our reversal of the honest-

services fraud convictions, we need not consider these additional chal-

lenges.

UNITED STATES v. HORNSBY 21

Under this challenge, a court must determine whether evi-

dence admitted to support a reversed count prejudiced the

remaining counts to warrant their reversal. See United States

v. Livingston, 63 F. App’x 106, 107 (4th Cir. 2003) (finding

that the defendant’s remaining convictions should not be

vacated because there was no prejudicial spillover from evi-

dence supporting the dismissed counts); Riley, 621 F.3d at

324-25 ("Prejudicial spillover analysis requires a finding that

there was a spillover of evidence from the reversed count that

would have been inadmissible at a trial limited to the remain-

ing count."); United States v. Rooney, 37 F.3d 487, 855 (2d

Cir. 1994) ("When an appellate court reverses some but not

all counts of a multicount conviction, the court must deter-

mine if prejudicial spillover from evidence introduced in sup-

port of the reversed counts requires the remaining convictions

to be upset."); United States v. Bailey, 859 F.2d 1265, 1273

n.1 (7th Cir. 1988) (finding that reversal of mail fraud counts

does not automatically require reversal of remaining convic-

tions because the counts were properly joined, there was no

basis for severance, and the evidence admitted to support the

reversed counts would have been admitted even absent those

counts).

In the instant case, Hornsby has not pointed this Court to

any specific evidence admitted at his trial that would be inad-

missible at a trial only for the tampering and obstruction

counts. Nor does he explain why, absent the honest-services

fraud counts, the Government would be barred from present-

ing the bulk of the LeapFrog evidence at a trial for the

remaining counts. Under Federal Rule of Evidence 404(b),

evidence of other crimes or bad acts may be admitted to prove

the knowledge or intent of the person for acting in a particular

manner. "[W]hen a defendant has been charged with

attempted or actual obstruction of justice with respect to a

given crime, evidence of the underlying crime and the defen-

dant’s part in it is admissible to show the motive for his

efforts to interfere with the judicial processes." United States

v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988). Thus, in

22 UNITED STATES v. HORNSBY

United States v. Siegel, 536 F.3d 306, 317-18 (4th Cir. 2008),

we reversed the district court’s exclusion of prior-crimes and

bad-acts evidence in an obstruction-of-justice prosecution

because we found, in part, that the evidence gave the jury a

basis for concluding that the defendant had a very strong

interest in killing a Government witness. We further deter-

mined that evidence intrinsic to the crime was admissible to

prove motive because it was necessary to complete the "story"

of why the defendant interfered with the investigation. Id. at

316. Similar to Siegel, the evidence with respect to the Leap-

Frog contract was necessary to complete the story of Horns-

by’s interference with the federal investigation against him

and his intent to tamper with evidence and witnesses.

Further, the Government presented strong evidence to sup-

port the tampering and obstruction convictions: Hornsby

instructed PGCS employees to destroy his e-mail files; he

requested Joffrion not to provide the federal government with

a personal computer used by Owens; and finally, he sent a

message to Owens, through his daughter, in an attempt to per-

suade Owens not to cooperate during her grand jury testi-

mony. For these reasons, we find that there was no prejudicial

spillover of evidence supporting the honest-services fraud

counts that requires the reversal of the tampering and obstruc-

tion convictions.

(6)

Finally, Hornsby submits that he is entitled to a new sen-

tencing hearing on the tampering and obstruction convictions

because his concurrent sentences of seventy-two months

reflect his honest-services fraud convictions. We review the

reasonableness of a sentence for whether the district court

abused its discretion. United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007). In doing so, we examine the sentence for

both procedural and substantive errors. Id. After a review of

Hornsby’s sentencing record, we determine that re-sentencing

on the tampering and obstruction convictions is warranted.

UNITED STATES v. HORNSBY 23

In calculating the sentences, the district court used the

honest-services fraud convictions as the base offense for the

tampering and obstruction convictions, U.S.S.G § 2C1.1(a),

applied a four-level adjustment for Hornsby being in a posi-

tion of policy decision-making, § 2C1.1(b)(3), applied a

fourteen-level adjustment for loss, § 2C1.1(b)(2), and then

applied a two-level enhancement for obstruction of justice,

§§ 2C1.1(c)(2), 2X3.1, and 2J1.2. J.A. 3168-69. The district

court then considered 18 U.S.C § 3553(a) factors. In consider-

ing these factors, it primarily focused on Hornsby’s conduct

with respect to honest-services fraud. Indeed, the district court

did not conduct any separate analysis regarding the appropri-

ateness of the seventy-two month sentences for witness and

evidence tampering and obstruction of justice. Instead, the

court stated its rationale for imposing the seventy-two month

sentences for the honest-services fraud convictions, and then,

without further explanation, imposed the same sentences for

all tampering and obstruction convictions to run concurrently.

As a result, the record is insufficient for us to assess the rea-

sonableness of the tampering and obstruction sentences sepa-

rate from the now-reversed honest-services fraud convictions.

See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)

(stating that "[p]rocedural errors include . . . failing to con-

sider the § 3553(a) factors . . . or failing to adequately explain

the chosen sentence . . . .").

Faced with the tampering and obstruction convictions only,

the district court may determine that the seventy-two month

sentences are inappropriate. This possibility is not unlikely

given that the district court sentenced Hornsby below the rec-

ommended range for all convictions because it found that the

range did not reflect the circumstances of Hornsby’s crimes

and criminal history.8 Because we cannot conclude that, "it

was reasonably certain that the judge would have imposed the

8

The district court did not sentence Hornsby within the recommended

guidelines range of 151 to 188 months, but rather sentenced him to 72

months.

24 UNITED STATES v. HORNSBY

same sentences even if the [erroneous] charge of honest-

services fraud had not been submitted to the jury," we vacate

the sentences and remand to the district court for re-

sentencing. Black, 625 F.3d at 389, 393-94 (reversing the

honest-services fraud convictions based on a conflict of inter-

est and remanding the case for re-sentencing on the remaining

convictions); Riley, 621 F.3d at 339 (same); United States v.

Coniglio, 417 F. App’x 146, 151 (3d Cir. 2011) (same).

III.

For the foregoing reasons, we reverse the convictions of

honest-services fraud (counts 6, 7, and 10), and affirm the

convictions of evidence and witness tampering (counts 19 and

20) and obstruction of justice (count 22). We vacate the sen-

tences and remand the case for re-sentencing of counts 19, 20,

and 22.

AFFIRMED IN PART,

REVERSED IN PART,

VACATED IN PART,

AND REMANDED