In United States v. Hoffman, 556 F.3d 871 (2009), the appellate court upheld a gratuities conviction based on an indictment alleging that the defendant had given a Government employee a set of golf clubs for or because of that Government employee’s role in rating the contractor’s performance under a contract with the United States Army Corps of Engineers. The court’s opinion illustrates a number of key points regarding the gratuities statute and the types of conduct that create the risk of a gratuities violation.
Russell Hoffman was a vice president at Surdex Corporation (“Surdex”), a company that provides aerial photography and mapping services. Hoffman served as the project manager for a two-year contract awarded to Surdex by the United States Army Corps of Engineers (the “Corps”) in May 1996. William Schwening, also a defendant, was the Corp’s primary point of contact for the 1996 contract.
In April 1999, the Corps awarded Surdex a follow-on contract with a three-year period of performance. At the conclusion of the contract, Schwening was responsible for completing a performance evaluation report (PER) grading Surdex’s performance under the contract. PERs are among the tools used by an agency to evaluate a contractor’s past performance in connection with competitive acquisitions.
Over the course of the 1996 and 1999 contracts, Hoffman and Schwening had frequent professional and social contact. These contacts resulted in a criminal investigation and indictment alleging that Hoffman gave Schwening a set of golf clubs for or because of the PER to be completed by Schwening.
The Government’s primary evidence consisted of email correspondence between the defendants. From January 2003 to August 2003, Hoffman sent Schwening a number of emails requesting that Schwening complete the PER for Surdex’s 1999 contract. In September 2003, Hoffman sent Schwening an email that included small talk about golf and also inquired about the potential use of Surdex on a particular Corps project. In response to Hoffman’s email, Schwening asked, “no clubs yet??” Hoffman ordered clubs for Schwening the next day.
Schwening subsequently sent several emails to Hoffman inquiring about the status of the clubs, which he received in late October. On October 31, 2003, Schwening sent an email to Hoffman stating, “Hey buddy do you need ANYTHING. I hit the [clubs] last night straight outta the box awesome.”
By November 10, 2004, Schwening still had not completed the PER rating for Surdex. Hoffman then sent an email reminding Schwening to complete the PER and asking, “Oh, by the way, how is your golf game since you got those new woods?” Schwening never submitted the PER rating for the 1999 contract.
Following an investigation by the United States Department of Defense Criminal Investigative Service, Hoffman and Schwening were indicted for violations of the gratuities statute. The statute provides, in relevant part, as follows:
[W]hoever … otherwise than as provided by law for the proper discharge of official duty … directly or indirectly gives, offers or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official … shall be fined under this title or imprisoned for not more than two years, or both.
18 U.S.C. § 201(c)(1)(A).
The jury acquitted Schwening on all counts but convicted Hoffman. Hoffman appealed the conviction to the United States Court of Appeals for the Eighth Circuit.
Appellate Court Decision
On appeal, Hoffman argued, among other things, that the Government produced insufficient evidence to prove a violation of the gratuities statute. The Eighth Circuit rejected Hoffman’s argument and affirmed the conviction.
Hoffman contended that his conviction was improper because there was no evidence that he believed that Schwening would provide the requested PER rating and Schwening, in fact, never did so. The court rejected this argument, holding that the gratuities statute does not require a “reasonable belief” that a government employee will take the official action sought. Nor is it necessary that the Government employee have committed to taking, or have taken, that action. Rather, the Government need only establish that a gift was given with the intent to induce or reward an official act, regardless of whether that act occurs.
Hoffman also contended that his November 2004 email, sent thirteen months after the clubs were delivered to Schwening, was too remote to constitute sufficient evidence of his intent to provide an illegal gratuity. The court found that the email, in which Hoffman referenced the clubs immediately after requesting Schwening to submit the PER, provided sufficient evidence for the jury to conclude that the Hoffman provided the clubs with the intent to induce Schwening to submit a PER rating.
Finally, Hoffman argued that the November 2004 email was consistent with his testimony that he had purchased the clubs “ to treat a friend” and without a desire for anything in return. The court rejected this argument on the grounds that the clubs were purchased by Surdex rather than Hoffman, suggesting that the gift was given for a business purpose, and not based on the parties’ friendship, as Hoffman had maintained.
- A violation of the gratuities statute arises when a contractor gives, offerors, or promises anything of value to a Government employee for or because of an official act. A gift is given “for or because of an official act” within the meaning of the gratuities statute if it was provided as an inducement or reward for past or future actions by the Government employee.
- It follows that establishing a gratuities violation does not require the Government to prove that the parties agreed that the Government employee would perform an official act in exchange for a gift. Nor is it necessary for the Government to establish that the Government employee actually took the official action sought by the contractor. To the contrary, the violation is complete as soon as a contractor gives, offers, or promises anything of value with the prohibited intent.
- A jury may infer that a gift was given “for or because of an official act” based on circumstantial evidence. As a result, the context in which a gift is given, standing alone, may be enough to support a gratuities conviction.