A federal appeals court on Wednesday threw out half of the criminal convictions against Andre J. Hornsby, meaning that the former Prince George’s County schools chief might be freed from prison sooner.
The ruling from the U.S. Court of Appeals for the 4th Circuit says that while prosecutors proved Hornsby was responsible for a coverup, whether he committed a crime before that is debatable. It vacates the “honest-services” fraud convictions against the charismatic leader but upholds the evidence-tampering, witness-tampering and obstruction charges against him.
Hornsby was sentenced to six years in prison for steering lucrative schools contracts to his girlfriend and business associate and then covering his tracks. Hornsby will now be resentenced on only the tampering and obstruction convictions, according to the ruling.
“We’re very pleased that the honest-services counts were reversed,” said Robert Bonsib, Hornsby’s attorney. “We’re disappointed that the obstruction counts remain, but we are hopeful that with a resentencing, a judge will conclude that a lesser sentence is appropriate.”
The ruling further protracts an intense legal battle that began in 2004, when the FBI and the U.S. Attorney’s Office began investigating Hornsby in relation to a $956,000 contract awarded to LeapFrog Schoolhouse, an education technology company where Hornsby’s girlfriend worked. He resigned as schools chief while that investigation was underway, saw a jury deadlock in his case in 2007 and then was convicted in 2008 on six of 22 charges.
U.S. Attorney Rod Rosenstein said prosecutors have the option to retry Hornsby on the charges that were vacated but that they have not decided whether they’ll do so. He said it is also possible Hornsby’s sentence could remain the same. Hornsby was sentenced to six years in prison for each conviction and was allowed to serve the terms concurrently, court records show.
The legal logic for the appeals court’s decision stems from the 2010 Supreme Court ruling that gutted the “honest services” law and allowed former Enron chief executive Jeffrey K. Skilling to fight his conviction. The court determined that the law, which at one time criminalized any conduct that would deny a person the “right of honest services,” was unconstitutionally vague. The court said prosecutors should use it only in cases in which they could prove bribes or kickbacks, not just undisclosed conflicts of interest.
In Hornsby’s case, the federal appeals court acknowledged that prosecutors presented some evidence of a kickback. Hornsby’s girlfriend, Sienna Owens, testified that she gave the schools chief $10,000 as a present for helping her with the LeapFrog contract. But the appeals court ruled that it was impossible to tell whether jurors convicted Hornsby on that basis or whether they had convicted him merely because of his undisclosed relationship with Owens.
Rosenstein acknowledged that a conviction on an undisclosed conflict of interest would have to be thrown out under the Supreme Court ruling, and in Hornsby’s case, jurors were improperly instructed to consider that a crime.
“We’re not surprised,” Rosenstein said. “The law changed after the trial, and sometimes that happens and there’s not much you can do about it after the fact. If we tried the case after Skilling — and if we do retry the case — we’ll just try it on the kickback theory.”